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TMI Blog2020 (10) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be kept pending. He may also have to decide whether the goods should be sold or not having regard to the hazardous and inflammable nature of the goods. Petitioner is granted liberty to file appeal before the CESTAT under section 129-A(1)(a) of the Customs Act against the order dated 31.08.2020 - If such appeal is filed within a period of four weeks from today and an application is made for early hearing, CESTAT shall decide the appeal within a period of four weeks thereafter considering the limited nature of the grievance of the petitioner. Petition disposed off. - WRIT PETITION NO.2451 OF 2020, WRIT PETITION NO.2499 OF 2020, WRIT PETITION NO.2501 OF 2020 - - - Dated:- 22-9-2020 - UJJAL BHUYAN ABHAY AHUJA, JJ. Dr. Sujay Kantawala a/w Mr. Anupam Dighe, Ms. Chandani Tanna Ms. Shrushti Relekar i/by India Law Alliance, Advocates for the petitioners in all matters. Mr. Pradeep Jetly a/w Mr. J. B. Mishra, Advocates for the respondents in all matters. ORDER : (Per Ujjal Bhuyan, J.) This order will dispose off all the above three writ petitions. 2. Heard Dr. Sujay Kantawala, learned counsel for the petitioners and Mr. Jetly, learned senior counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t petition seeking the following reliefs:- 1) to set aside and quash test report dated 07.01.2020 and seizure memo dated 16.01.2020 in connection with bill of entry dated 04.01.2020; 2) to allow re-testing of the goods by another government recognized laboratory; 3) to allow release of the goods under bill of entry dated 04.01.2020; 4) to allow presence of an advocate in the course of interrogation / investigation of the petitioner; and 5) to issue a detention certificate in respect of the goods seized vide seizure memo dated 16.01.2020 for the purpose of waiver of demurrage charges incurred till release of the said goods. 6. Subject matter of the three writ petitions being identical, those were heard together and are being disposed off by this common order. However, learned counsel for the parties had argued Writ Petition No.2451 of 2020 i.e., Jaymco Polymers Private Limited Vs. Union of India as the lead case. In that view of the matter, facts and pleadings of the said case are being referred to in the judgment. 7. By the various bills of entry, petitioner had imported several containers of mineral hydrocarbon oil. It is stated that on reaching ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hold. The samples were drawn in presence of representatives of the petitioner and two independent witnesses and forwarded to DYCC, an approved laboratory. On the basis of the test reports which stated that the goods met the specifications of kerosene and diesel, the offending goods were seized. However, permission for warehousing was granted on 07.02.2020. Statement of the petitioner was recorded on 31.12.2019 where he admitted that the goods imported was kerosene and not mineral hydrocarbon oil. On examination, mobile phone of Mr. Jethanand B. Rohra who had appeared for the petitioner was seized vide seizure memo dated 31.12.2019 / 01.01.2020. Customs broker was also summoned but he failed to appear. 11.1. It is further stated that kerosene and high speed diesel are goods which are restricted for import only by State Trading Enterprises under the relevant import policy. Therefore, such goods being imported by other entities would be classified as prohibited goods under section 2(33) of the Customs Act. Being prohibited goods, those were seized under section 110 of the Customs Act. That apart, being prohibited goods those could not be provisionally released in view of internal c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel for the Petitioner submits that going by the stand of respondents, it is not feasible for the Petitioner to shift the inflammable goods (kerosene oil according to the Respondents) for dispatch by the Petitioner from flexi tanks / bags to drums. However, he has circulated an order dated 12/07/2019 passed by the Joint Commissioner of Customs, Nhava Sheva, Raigad, which is an order in original in the case of M/s. Amit Petroleum Pvt. Ltd. and submits that Petitioner would be agreeable to the conditions imposed in that order for release of the goods. Dr. Kantawala, learned counsel for the petitioners further submits that Petitioner may be given liberty to approach Respondent No.2, Commissioner of Customs (NSV), Nhava Sheva, Raigad to make his submissions in this regard. 5. Mr. Jetley, learned senior counsel has no objection to the prayer made. 6. In view of the above, we grant liberty to the Petitioner to approach Respondent No.2, Commissioner of Customs (NS-V), Nhava Sheva, Raigad for making necessary submissions for release of the seized goods. Without expressing any opinion on merit, we make it clear that Respondent No.2 may take a decision in the matter and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel for the petitioner submits that the manner in which Commissioner of Customs has passed the order dated 31.08.2020 under section 110-A of the Customs Act is against the letter and spirit of the order of this Court dated 10.08.2020. This Court had directed the Commissioner to pass an appropriate order regarding provisional release of the goods after considering the order-in-original passed in the case of M/s. Amit Petroleum Private Limited. Instead of passing an order similar to one passed in M/s. Amit Petroleum Private Limited, Commissioner has passed the order dated 31.08.2020 declining to maintain parity and imposing unreasonably harsh conditions. Such action is extremely high-handed and arbitrary, he submits. Conditions imposed are not at all capable of compliance. He contends that the conditions imposed by the Commissioner are contrary to and even beyond the circular dated 16.08.2017 of the Central Board of Excise and Customs. Besides, Commissioner has levied excise duty on the estimated market value of the goods thus leading to double levy of customs duty. Petitioner has been penalized for approaching the Court. It is nothing but an abuse of power and authority. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs (Import-I) Vs. S. S. Offshore Pvt. Ltd.] was considering the question as to whether Customs, Excise and Service Tax Appellate Tribunal i.e., CESTAT has the jurisdiction to entertain an appeal against a letter allowing provisional release of vessel under section 110-A of the Customs Act. After threadbare discussion on various provisions of the Customs Act and judicial pronouncements, this Court held that such a letter / communication given is a decision within the meaning of section 110-A of the Customs Act and would be appealable under section 129A(1)(a) of the Customs Act. This Court noted that similar view has been taken by the Delhi High Court as well as by the Rajasthan High Court. 26. The said decision in S. S. Offshore Private Limited (supra) has been consistently followed by this Court thereafter. 27. At this stage, we may advert to the order dated 31.08.2020 and the explanation given thereto by the Commissioner. Commissioner referred to the board circular dated 16.08.2017 as well as to the decision in M/s. Amit Petroleum Private Limited. 27.1. Central Board of Excise and Customs vide circular No.35/2017 dated 16.08.2017 has issued guidelines for the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 354 dated 10.12.2019 (ii) 6025517 dated 10.12.2019 (iii) 6227454 dated 25.12.2019 (iv) 6356219 dated 04.1.2010 and (v) 6110507 dated 17.12.2019 is offered subject to following conditions: (i) Execution of Bond of ₹ 29036082/- being the market value of the goods; (ii) Security deposit of ₹ 37732753/- on account of differential duty, Redemption Fine and Penalty that may be levied at the time of adjudication; and (iii) Payment of self-assessed duty in respect of Bills of Entry No. 6227454 dated 25.12.2019 and 6356219 dated 04.1.2020 where self-assessed duty is not paid. 29. When this Court called upon the respondents to explain the figures mentioned in clauses (i) and (ii) of paragraph 18 as extracted above, the Commissioner has given an explanation by way of a signed statement. 29.1. We have already noted the contention of learned counsel for the petitioner that the conditions imposed by the Commissioner while granting provisional release is extremely unreasonable and incapable of any compliance. 30. Though respondents in their affidavits had taken the stand that provisional release of the goods could not be made as the goods were categorized und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decide the appeal within a period of four weeks thereafter considering the limited nature of the grievance of the petitioner; 3) In so far adjudication process is concerned, let the adjudicating authority initiate the adjudication process by issuance of show cause notice under section 124 of the Customs Act and take the proceeding to its logical conclusion one way or the other by following the due procedure and principles of natural justice within a period of four weeks from the date of receipt of a copy of this order; 4) Petitioner is also granted liberty to file application before the respondents for sale of the seized goods and if such application is filed, respondents shall take a considered decision thereon in accordance with law within a period of two weeks from the date of receipt of the application with due intimation to the petitioner; 5) All contentions are kept open and we have not expressed any opinion on merit or otherwise. 33. Above directions will also be applicable in Writ Petition Nos.2499 of 2020 and 2501 of 2020. 34. All the writ petitions are accordingly disposed off but without any order as to costs. 35. This order will be digitally si ..... X X X X Extracts X X X X X X X X Extracts X X X X
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