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TMI Blog2021 (2) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioners in Writ Petition (L) Nos.6821, 6824, 6826 and 6827 of 2020; Mr. Batra, learned counsel for the petitioners in Writ Petition (St.) Nos. 96099 and 96777 of 2020; and Mr.Pradeep S. Jetly, learned senior counsel alongwith Mr.J.B.Mishra, learned counsel for the respondents. 2. In all the above writ petitions petitioners are aggrieved by seizure memos dated 31st October, 2020 and 2nd November, 2020 whereby declared quantities of cut and polished diamonds of the petitioners sought to be exported vide different shipping bills were seized by the customs authorities. 3. Following notice issued on admission as well as on the prayer for stay, respondents have filed reply affidavit justifying the seizure. 4. When the cases were heard on 21st January, 2021, court had taken the view that instead of entering into the rival contentions as to the legality and validity of the seizures at this stage it would be in the interest of justice if the Commissioner of Customs was directed to act in terms of section 110A of the Customs Act, 1962 (briefly "the Customs Act" hereinafter) for provisional release of the exportable goods. Relevant portion of the order dated 21st January, 2021 reads ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods 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." 7. We do not find any impediment to exercise of power by the Commissioner of Customs under section 110A of the Customs Act, 1962. 8 Accordingly, we direct the Commissioner of Customs to pass order(s) for provisional release of the exportable goods of the petitioners in accordance with law within seven days from the date of receipt of a copy of this order. 9. Stand over to 01.02.2021." 5. When the cases were taken up on 1st February, 2021 six separate but identical orders, all dated 29th January, 2021 issued by the Principal Commissioner of Customs, were placed before us. As per the said orders dated 29th January, 2021 Principal Commissioner of Customs had ordered that the subject goods should not be released provisionally as there was no request from the concerned persons for provisional release of the goods. This court expressed surprise at such orders being passed in contravention of the direction of the High Court. However, on request of Mr.Jetly that he would take up the matter with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the goods. Relevant portion of the order dated 3rd February, 2021 is as hereunder:- "2. Pursuant to our order dated 01.02.2021, Mr. Jetly has furnished before us fresh provisional release orders dated 02.02.2021 in respect of all the petitions. On a query by the Court he has taken us to paragraph-5 of the provisional release orders wherefrom we find that the earlier orders dated 29.01.2021 has been withdrawn and in place of the earlier orders, the present set of orders dated 02.02.2021 have been passed. 3. Mr. Jetly submits that the previous set of orders dated 29.01.2021 were passed due to a misinterpretation of the Court orders. He further submits that there was no intention on the part of the respondents to violate orders of this Court in any manner. 4. Without expressing any opinion at this stage, we permit learned counsel for the petitioners to amend the writ petitions by incorporating the provisional release orders dated 02.02.2021. 5. Learned counsel for the petitioners may also examine the conditions imposed for provisional release of the goods and make submissions thereon. 6. Stand over to 5th February, 2021." 7. Thereafter, the provisional release or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioners are considered. Accordingly, without entering into the merit of the challenge vis-a-vis the impugned orders of seizure and observing that there was no impediment to exercise of power under section 110A of the Customs Act, direction was issued to the Commissioner of Customs to pass orders for provisional release of the exportable goods of the petitioners within seven days. When this court had directed the Commissioner of Customs to pass orders for provisional release and in compliance to such direction the Principal Commissioner of Customs has now passed orders for provisional release of the exportable goods of the petitioners with certain conditions, it would not at all be just and proper to relegate the petitioners to the appellate forum to ventilate their grievance as to the conditions imposed. 13. At this stage, we may mention that the goods under consideration are cut and polished diamonds which are freely importable/ exportable. Petitioners are having Importer Exporter Code (IEC) on the basis of which they are carrying on the business of import and export. In the instant case it is a matter of export. The Importer and Exporter Codes of the petitioners have neither b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y are exported includes any owner, beneficial owner or any person holding himself out to be the exporter. 18. From the above, it is evident that the definition of "exporter" under the Customs Act is both elastic as well as wide. Exporter would include the owner or a beneficial owner or any person holding himself out to be the exporter. 19. Viewed in the above context, condition No.(c) in the provisional release orders dated 2nd February, 2021 does not appear to be justified. Any person whether the owner, beneficial owner or an agent (including a customs house agent) can seek release of the goods on production of the relevant papers and on payment of the duty. 20. In so far condition No.(b) is concerned, we are of the view that insistence on bank guarantee or revenue deposit equal to the amount declared free on board of the goods plus the probable redemption fine and penalty is not only harsh and oppressive but also amounts to prejudging as to what the adjudicating authority would do upon adjudication. Presupposing that adjudicating authority will impose redemption fine and penalty will amount to taking a view before hand as to what decision the adjudicating authority would rende ..... X X X X Extracts X X X X X X X X Extracts X X X X
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