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TMI Blog2018 (11) TMI 1592X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in accordance with law as the provision of Section 74 clearly envisages permissible grounds for reexport and there is not a single ground embedded therein, which may be considered as a ground militating against the prayer for permission for reexport. This fact needs appreciation so far as the prayer for reexport and the interest of respondents are concerned - petition allowed by way of remand. - R/SPECIAL CIVIL APPLICATION NO. 15103 of 2018 - - - Dated:- 27-11-2018 - MR. JUSTICE S.R. BRAHMBHATT AND MR. JUSTICE UMESH A TRIVEDI MR DHAVAL SHAH (2354) for the PETITIONER Nos. 1, 2 DS AFF.NOT FILED (N) (11) for the RESPONDENT No. 1 NOTICE SERVED BY DS (5) for the RESPONDENT Nos. 3, 4 VIRAL K SHAH (5210) for the RESPONDENT No. 2 ORAL ORDER (PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) 1. Heard learned counsels for the parties. 2. The petitioners, i.e. the private limited company and its director and shareholder respectively have approached this Court by way of this petition under Article 226 of the Constitution of India with following prayers. (A) YOUR LORDSHIPS may be pleased to issue a writ of Certiorari or writ in the nature of certior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to be canvassed by the authorities, they be permitted to reexport the same in which eventuality they would not be subjected to the prohibitory anti dumping duty and may receive some respite based thereupon. This repeated requests were not heeded to and petitioner was served with seizure order followed by show cause notice and he was calledupon as to why the goods cannot be confiscated under Section 111m. It is require to be noted at this stage that the petitioners availed the benefit of provisions of provisional release of goods pending adjudication as provided under Section 110A of the Customs Act and rules made thereunder and accordingly the petitioner was permitted to provisionally clear the goods vide order dated 15th October 2017 wherein the petitioner was to furnish a bank guarantee to the tune of ₹ 37,00,000/and duly executed bond for the entire value of the goods, which comes to around 1,47,90,459/. Accordingly, the petitioners furnished the bank guarantee, which was found to be inadequate on account of absence of some auto renewal clause which was also rectified and duly executed bond was furnished. However, petitioner persisted in the request for permitting them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rights of the petitioners in seeking permission to reexport. Learned counsel for the petitioners invited Court's attention to their communication dated 13.09.2017 addressed to the concerned respondent authority in detail narrating as to why they were justified in contending that the imported goods were not whole machine as sought to be contended on behalf of the authorities and sought permission of the authorities that in case if the authority is not satisfied with their justification for classifying the goods then, the same be permitted to be reexported directly from the warehouse or else under the claim of draw back under Section 74 of the Customs Act, 1972. Learned counsel appearing for the petitioners also invited Court's attention to the page no.75 of the compilation and submitted that the authorities unfortunately drawn panchnama at 14:15 hours on the very same day, which followed by seizure order, which unfortunately could not have been issued and rather authorities could have considered the request of the petitioners for permitting the petitioners to reexport the goods. The petitioners' counsel invited Court's attention to the affidavitinreply and the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eek any relief much less any equitable relief from this Court as in case, if the Court grants any relief, it would be amounting to allowing the petition at the admission stage. 12. Learned counsel for the respondent further submitted that the goods though provisionally released are liable to be confiscated and as such the adjudicatory authority has passed detailed order as to how and in what manner the duties are to be realised from the petitioners. This Court, when the petitioners' counsel in an unequivocal terms said that he has not challenged the same in this proceeding, cannot grant any relief, which may affect the parties respondents adversely. 13. Learned counsel for the respondents vehemently submitted that the petitioners' inaction so far as show cause notice is concerned or rather his active participation in adjudicatory process, which has culminated into passing of the order dated 31st October 2018, may estopped them from seeking any relief in this petition without challenging the said order and when the petitioners' counsel has submitted that this order of 31st October 2018 is not challenged in the present proceedings and he has sought liberty to chal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the redemption fine of ₹ 22,00,000/in lieu of confiscation. ... III. I order, for confiscation of the four (04) Horizontal Injection Molding Machines totally valued at ₹ 1,47,90,459/imported under Bills of entry No.2729490 dtd. 04/08/2017, 2970541 and 2970475 both dtd.24/08/2017 at ICD, Khodiyar, District : Gandhinagar by misdeclaring the same as Spare Parts for Injection Molding Machines which were seized on 26/09/2017, by M/s. Huarong Plastic Machinery India Ltd., Ahmedabad. However, and since the said goods have been released on execution of bond after provisional assessment, I impose a redemption fine of ₹ 22,00,000/( Rupees Twenty Two Lakh only) under the provisions of Section 125(1) of the Act in lieu of confiscation. ... ... This fact needs appreciation so far as the prayer for reexport and the interest of respondents are concerned. We are of the considered view that the bank guarantee already furnished to the tune of ₹ 37,00,000/and the bond executed would be sufficient warranty against likelihood of respondent suffering any legitimate admissible revenue loss and there could be appropriate undertaking ordered to be filed by the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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