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TMI Blog2019 (4) TMI 1275X X X X Extracts X X X X X X X X Extracts X X X X ..... e goes without saying that it is only a discretion to be exercised in accordance with the well settled principles of law governing the exercise of a statutory discretion vested in a public authority, but not caprice. In either case the respondents are required to take a decision expeditiously either to make a regular assessment or a provisional assessment or a decision to confiscate the goods in question if it is permissible under law after following appropriate procedure or provisionally release the goods under Section 110-A of the Customs Act. As already noticed, even in a case where the goods are liable for confiscation, Section 125 of the Customs Act provides for redemption of goods on payment of fine so long as the goods are not goods falling under the category of prohibited goods for the purpose of import. Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... rities were having the right to re-determine the value. ii) He brought to our notice that the original value in the Bill of Entry was initially redetermined at the time of assessment of the Bills of Entry on the basis of NIDB data. He prayed that such valuation, being more reasonable, may be adopted for calculating the Bank Guarantee as a condition for provisional release of goods. iii) He relied on the recent Order passed by the Tribunal in the Misc. Order No.75822-75823/2018 dated 20.09.2018 in the case of Aman Exports vs. CC (Port), Kolkata, in which the Tribunal ordered provisional release of the seized goods on the basis of valuation based on NIDB Data. He prayed that similar order may be passed in the present case also. iv) He also brought the notice that the show cause notice dated 03.09.2018 has already been issued by DRI, covering the goods imported by M/s. Aman Exports as well as by M/s. Opel Exports in the present four appeals. v) He also submitted calculation indicating the valuation arrived on the basis of the NIDB data for goods covered under Bills of Entry including the undeclared goods and prayed that such valuation may be adopted for the purpose of provisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue has strongly contested and opposed the plea for adopting such valuation. They have insisted that the bank guarantee value was determined by the Commissioner by taking into account various factors to safeguard the Revenue's interest including the likely fine and penalties, in addition to the differential duties. 10. We take note of the fact that the investigation by DRI has already been concluded as evidenced from the show cause notice dated 03.09.2018. The show cause notice indicates the basis for redetermination of value and has proposed confiscation of offending goods. 11. We have perused the earlier order passed by the Tribunal dated 20.09.2018 in the case of Aman Exports. In the above Order, the Tribunal has proceeded to redetermine the value of the imported goods for the purpose of executing the Bond backed by the Bank Guarantee as a condition for provisional release of the seized goods. For such purpose Tribunal has taken note of the range of values for the imported goods as appearing in the NIDB Database. Ld. Advocate, has submitted a similar compilation of NIDB data values said to be for contemporaneous period in respect of the goods covered in the present disputed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts must pass an appropriate order indicating the legal basis on which the action is proposed and also the nature of the action proposed for such perceived violation of law on the part of the respondents after giving a reasonable opportunity to the importer to meet the case against him. Instead of proceeding to determine the duty leviable on the imported goods by following the appropriate procedure or passing an order of confiscation if they believe that they are justified in the facts and circumstances, the respondents, it appears, are indefinitely detaining the goods without any appropriate order being passed thereon. Such a course of action, in our opinion, is absolutely illegal. 16. Coming to the submission of the appellant that the respondents are bound to release the goods under Section 11OA of the Customs Act pending adjudication of the legality of the import, we are of the opinion that as rightly held by the learned Single Judge, Section 11OA does not create an absolute right in favour of the importer, but vests a discretion in the customs authorities to follow such course in appropriate case goes without saying that it is only a discretion to be exercised in accordance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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