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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 ..... hone of the petitioner; 2) test report No.231 dated 17.12.2019 and seizure memo dated 30.12.2019 in respect of bill of entry dated 10.12.2019; 3) test report No.232 dated 17.12.2019 and seizure memo dated 30.12.2019 in respect of bill of entry dated 10.12.2019; 4) test report No.18 dated 07.01.2020 in respect of bill of entry dated 17.12.2019; 5) test report No.19 dated 07.01.2020 and seizure memo dated 15.01.2020 in respect of bill of entry dated 25.12.2019; 6) to allow re-testing of the goods in another approved laboratory; 7) to allow release of the goods covered by all the bills of entry; 8) to allow presence of a lawyer during interrogation / investigation of the petitioner; and 9) to issue a detention certificate in respect of the goods covered by all the bills of entry which have been seized till release of the goods for waiver of demurrage charges. 4. In Writ Petition No.2499 of 2020, M. M. Trading Company, a proprietary concern of the proprietor, Murtuza M. Bhimani is the petitioner. By this petition under Article 226 of the Constitution of India, petitioner has sought for the following reliefs:- 1) to quash and set aside test report dated 10.01.2020 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t kerosene. In view of the said development, petitioner requested for retesting. However, the goods were seized on the ground that those were liable for confiscation under section 111(m) of the Customs Act, 1962 (briefly the 'Customs Act'). 8. Petitioner has alleged that because of such detention and seizure, it has been compelled to pay heavy detention and demurrage charges. It is further alleged that in the course of interrogation, managing director of the petitioner Shri. Jethanand B. Rohra was subjected to coercion and his confessional statement was recorded under duress. His mobile phone was seized. It is stated that the managing director subsequently retracted his confessional statement. 9. Petitioner by letters dated 20.01.2020 and 21.01.2020 requested respondent Nos.2 and 3 for re-testing of the samples and for provisional release of the goods. Both the requests for re-testing and provisional release of the goods were rejected. 10. It is under such circumstances that the present writ petition has been filed seeking the reliefs as indicated above. 11. Respondents have filed affidavit in reply. Stand taken in the affidavit is that on the basis of intelligence / informatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation and conduct of the importer being not bonafide. 12. This Court by order dated 03.07.2020 noted the submission of learned counsel for the petitioner that the goods are fire hazardous and posed imminent danger because of the manner in which those were stored at present. This Court granted liberty to the petitioner to file an affidavit on the above aspect while making it clear that hearing of the petition would be restricted to apprehension of the petitioner that the goods are a fire hazard to the general public. 13. Thereafter petitioner filed additional affidavit pointing out the hazardness of the goods seized. 14. On 03.08.2020, this Court had passed the following order:- "2. On a query by the court learned counsel for the petitioner makes a statement that the goods presently stored are in danger of being damaged in which event serious prejudice will be caused to the petitioner. He therefore, makes a submission that under the supervision of the respondent authorities petitioner may be permitted to shift the goods to a safer place. 3. Learned counsel for the respondents seeks time to obtain instructions in this regard. 4. Stand over to 6th August, 2020." 15. Mr. Gau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout giving him any summons. Thereafter his statement was recorded by a team of officers headed by Mr. Jharwal. He has made various statements alleging mistreatment and duress. According to him, there was no misdeclaration of the goods covered by the bills of entry. 18. When the matter was taken up on 08.09.2020, it was recorded that the adjudicating authority had passed three separate orders dated 31.08.2020 allowing provisional release of the goods subject to the conditions mentioned therein. In the course of the hearing when learned counsel for the petitioner raised grievance as to the conditions imposed for provisional release, it was mentioned on behalf of the respondents that if the petitioner is aggrieved by the conditions imposed for provisional release of the goods, the remedy is by way of appeal. When it was pointed out that the statute does not provide for any appeal against an order of provisional release passed under section 110-A of the Customs Act, it was submitted at the bar that this Court had passed judgments to that effect. Hearing of the case was deferred giving liberty to learned counsel for the parties to circulate such judgments. 19. On the next date i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Board of Indirect Taxes and Customs. He has also referred to instructions dated 22.07.2010 issued by the Central Board of Excise and Customs regarding expeditious disposal of hazardous goods. 21.2. He submits that the conditions imposed by the Commissioner are so absurd and abnormal that it would be better if the goods are sold by the department which will also reflect the true market value of the goods which can thereafter be retained by the department till the proceedings are over. In this connection, he makes an alternative prayer that he may be given liberty to approach the Commissioner or such other authority for sale of the seized goods. 21.3. Finally, Dr. Kantawala has referred to a decision of the Delhi High Court in Shilp Impex Vs. Union of India, 128 ELT 54, which was affirmed by the Supreme Court in 140 ELT 3. He has also relied upon a decision of the Calcutta High Court in Ratan Lal Jain Vs. Union of India, 349 ELT 468. 22. Per contra, Mr. Jetly submits that this Court in the order dated 10.08.2020 had directed the Commissioner to take a decision one way or the other on the prayer of the petitioner for release of the goods seized. Thereafter, he has pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 019 passed by the Joint Commissioner of Customs, NS-I. In that case, the importer had sought clearance for low aromatic white spirit which was imported from overseas supplier. The goods were examined and thereafter samples were drawn. Samples were sent to approved laboratory. As per the test report, it was found that the samples met the standard specification of superior kerosene oil and not low aromatic white spirit. Following adjudication, the adjudicating authority held that the said importation was liable for confiscation under sections 111(d) and (m) of the Customs Act but took the view that the goods could be redeemed on payment of redemption fine, penalty etc. While rejecting the declared classification of the imported goods, he ordered confiscation of the imported goods but gave an option to the importer to redeem the same on payment of redemption fine of Rs. 3,00,000.00 and penalty of Rs. 1,00,000.00. 27.3. While passing the order dated 31.08.2020, Commissioner has not discussed about the conditions laid down in the circular of the board but he has commented on the decision in Amit Petroleum Pvt. Ltd. According to the Commissioner, the said decision is not applicable to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ictive meaning can be read into the said provision. In the said case, this Court interpreted section 110-A and took the view that the aforesaid section provides a pragmatic mechanism to facilitate provisional release of seized goods etc. to the owner pending adjudication but at the same time protecting the interest of the revenue. Keeping the above in mind, the provision is required to be understood and applied. 31. The goods in question have been seized under section 110 of the Customs Act. From a reading of sub-section (1) of section 110, it is evident that seizure of a good is not an end in itself. It is a means to an end. The end is confiscation, if justified and warranted. From the pleadings it is seen that the goods were put on hold and thereafter seized in the first week of January, 2020. Considering that the goods in question, be it mineral hydrocarbon oil as claimed by the petitioner or kerosene / high speed diesel as claimed by the respondents, are highly inflammable and hazardous, a proceeding related thereto is required to be decided expeditiously. The adjudicating authority is required to decide whether goods are liable for confiscation or not; adjudication cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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