9911796707
TMI Blog2021 (2) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... ve detention / demurrage charges if any; b. For interim and ad-interim reliefs in terms of prayer clause (c) above. c. For costs of this petition. d. For such further and other reliefs be granted to the petitioner as this Hon'ble Court may deep proper and fit in the nature and circumstances of the case." 3. Petitioner seeks release of vehicle No. MH-46-H-1284 detained by the customs authorities i.e. respondent Nos.2 and 3 since 04.11.2019 and has challenged the provisional release Order dated 14.07.2020 passed by respondent No.3 i.e. the Assistant Commissioner of Customs (Preventive), M & P Wing, Marine Drive, Mumbai in the present petition. 4. Before we advert to the submissions made by learned counsel for the parties, it will be apposite to briefly refer to the relevant facts:- 4.1. Petitioner is engaged in transport business and is proprietor of M/s. Jalaram Container Movers having its office in Mumbai. Petitioner is the owner of a transport vehicle i.e. a trailer bearing Registration No. MH-46-H-1284. 4.2. M/s. Atharv Enterprises having IEC No.BAPPG8916F was involved in illegal import of "counterfeit branded" goods by misdescribing them as "unbranded" goods. One such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Mr. Kanhaiya Hurbada, employee of CHA (Clearing House Agent) was recorded on 06.11.2019 wherein he confessed that he was working on free-lance basis for the CHA; since there was no escort with the vehicle, he got encouraged to decamp with the goods; waylaid driver Mr. Raj Kumar and during his absence cut open the seal and decamped with small cartons in order to make a quick earning as he required the money for his son's treatment. Subsequently he decided to surrender and return the said goods to the authority as he was unable to sell the same. 4.9. Petitioner addressed letters dated 05.11.2019 and 13.12.2019 to respondent Nos.2 and 3 seeking release of his vehicle bearing No. MH- 46-H-1284 which was detained at Turbhe by the customs authorities. 4.10. On 14.07.2020, petitioner received the provisional release order allowing provisional release of the vehicle under section 15 of the Customs Act, subject to the following conditions which are extracted hereunder :- "I. The applicant will execute a bond of Rs. 75,00,000/- (Rupees Seventy Five Lakh Only) being the value of the goods that were being smuggled. II. The applicant will produce a bank guarantee for 30% of the valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the cost of the vehicle which was detained by the customs authorities was merely Rs. 9,50,000/- only. Though the petitioner is conscious of the fact that the order of provisional release dated 14.07.2020 is an appealable order, petitioner has approached this Court as the alternate remedy is cumbersome and not at all efficacious in the facts and circumstances of the case. Petitioner is out of business for more than one year due to the seizure of his vehicle though paying EMIs on the auto loan availed by the petitioner for purchase of the vehicle. 6.1. He submitted that the act of the importer of committing breach and violation of the Customs Act is required to be viewed separately from the act of the petitioner who had merely provided his vehicle for transportation of the container containing the seized goods without having any knowledge about the nature and status of the goods. Petitioner is innocent and no mala fides can be attributed to the petitioner. Order dated 14.07.2020 for provisional release of his vehicle is onerous for several reasons; Petitioner is not in a position to execute a bond for Rs. 75,00,000/- as called upon by respondent No.3 as he is a person of small ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal. Provided that where any such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine not exceeding the market price of the goods which are sought to be smuggled or the smuggled goods, as the case may be." 10.1. Section 115(1)(e) provides that any conveyance carrying imported goods which is later on found missing in whole or in substantial portion shall be liable to confiscation unless the master is able to account for the loss of, or deficiency in, the goods. Section 115(2) states that any conveyance used as a means of transport in the smuggling of any goods shall be liable to confiscation unless the owner of the conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.02.2017 wherein paragraph Nos. 4 and 5 are relevant and are quoted hereunder :- "4. In view of the above, in all future cases, the following may be adhered to : Whenever goods are being seized, in addition to panchnama, the proper officer must also pass an appropriate order (siezure memo/order/etc.) clearly mentioning the reasons to believe that the goods are liable for confiscation. Where it is not practicable to seize any goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer. In such cases, investigations should be fast-tracked to expeditiously decide whether to place the goods under seizure or to release the same to their owner. 5. Further, it has been brought to the notice of the Board that cases where Provisional Release of seized goods is allowed under Section 110A of the Act ibid, show cause notices are not being issued within the stipulated time period on the ground that the goods have been released to the owner of the goods. The provisions of the Customs Act, 1962 are clear that irrespective of the fact whether goods remain s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is at Exhibit 'E' to the writ petition. The contents of this show cause notice state that on 03.11.2019 statement of Mr. Haresh Bhanushali i.e. petitioner was recorded under Section 108 of the Customs Act, wherein it was stated that the seized vehicle was booked through booking agent Mr. Deepak Bhanushali and the same was immediately allotted for transport of the container from ULS CFS as the said vehicle was parked nearby; on 04.11.2019 statement of Mr. Deepak Bhanushali booking agent was recorded under Section 108 of the Customs Act, wherein the movement of the vehicle was detailed; on 05.11.2019 statement of the driver of the vehicle Mr. Raj Kumar was recorded; on 06.11.2019 statement of Mr. Kanhaiya Hurbada the principal accused employee of the CHA was recorded under Section 108 of the Customs Act, wherein he stated as under : "i. He works on free-lance basis for CHA or major clearing agents as they are not able to reach Nhava Sheva on regular basis and thus they assign him small work such as clearing and forwarding. ii. The clearing / dispatch work of M/s Atharv enterprises was given to him by Shri Jayesh Bhanushali whose mobile number is 9820281973. He was ask ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter was taken to Turbhe CWC but the broken seal was noticed by them and they sent a report accordingly. He admitted that during the Panchnama the goods in the cartons were replaced with fake goods and branded goods were missing but he was aware of the same" 18. Petitioner has been belatedly issued the corrigendum to the show cause notice on 21.12.2020 that too after this Hon'ble Court was seized of the matter. This Court had issued notice on 02.12.2020 noting the grievance of the petitioner that his vehicle continued to remain under seizure without any show-cause notice being issued for more than one year thus being violative of section 110(2) of the Customs Act. Therefore action of issuing corrigendum to the petitioner after the High Court had taken cognizance of the grievance of the petitioner has rendered such action highly questionable. 19. That apart it is clearly discernible that there is a clear distinction between the conveyance used to transport the seized goods and the action of the importer which will be the subject matter of investigation. Both the issues relate to two different parties. On perusal of the extracts of statements reproduced in the show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
