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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 ..... missioner 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. 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 been cancelled nor suspended by the competent authority. The basic allegation is that the exporter is not operating its business from the notified address and is existing only on paper. Therefore, under the reasonable belief that the exporter is indulging in some fraudulent practices the seizure has been made - Since we are not dealing with the challenge to the seizure memos at this stage, we refrain from making any comment thereon. Reverting back ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, they would discharge their liability. (d) Petitioners shall not claim any duty drawback or other benefits relatable to the exports till disposal of the writ petitions. Stand over to 22nd March, 2021. - WRIT PETITION (L.) NO.6821 OF 2020 WRIT PETITION (L.) NO.6827 OF 2020 WRIT PETITION (L.) NO.6826 OF 2020 WRIT PETITION (L.) NO.6824 OF 2020 WRIT PETITION (ST.) NO.96099 OF 2020 WRIT PETITION (ST.) NO.96777 OF 2020 - - - Dated:- 10-2-2021 - UJJAL BHUYAN And MILIND N. JADHAV, JJ. Dr.Sujay Kantawala alongwith Mr.Anupam Dighe, Ms.Chandani Tanna, Mrs.Shrushti Relekar i/by M/s India Law Alliance, Advocates for the Petitioners in WPL Nos.6821 of 2020, 6827 of 2020, 6826 of 2020 and 6824 of 2020. Mr.A. Batra i/by Mr.Brijesh Pathak, Advocates for the Petitioners in WPST Nos.96099 of 2020 and 96777 of 2020. Mr.Pradeep S. Jetly, Senior Advocate with Mr.J.B.Mishra, Advocates for the Respondents in all the writ petitions. Ms.Anusha Amin, Advocate for Respondent No.1-Union of India in WPL Nos.6821 of 2020, 6827 of 2020, 6826 of 2020 and 6824 of 2020. ORDER P. C. Heard Dr.Kantawala, learned counsel for the petitioners in Writ Petition (L) Nos.6821, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith such security and conditions as the adjudicating authority may require. Thus, this provision confers a right on the owner to seek provisional release of seized goods etc., while at the same time a corresponding discretionary power is vested on the adjudicating authority who may release the seized goods etc. upon a bond with such security and conditions pending order of the adjudicating authority. Though much emphasis has been placed by the respondents on categorization of the imported vehicle as a prohibited good as defined under sub-section (33) of section 2, we do not find any limitation imposed in section 110-A that a good which is categorized as a prohibited good under section 2(33) cannot be subjected to provisional release under section 110-A. The words goods, documents and things seized are expressions of general import without any qualifications and / or are not accompanied by any qualifying words. Therefore, no restriction or restrictive meaning can be read into the said expressions which is not contemplated by the statute. 13. As a matter of fact, section 110A provides a pragmatic mechanism to facilitate provisional release of seized goods etc. to the owner pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectly in contempt of our order dated 21.01.2021 which order was taken cognizance of in the order dated 29.01.2021 in the first paragraph itself. 6. At this stage, Mr. Jetly submits that this bunch of cases may be listed on 03.02.2021 so that he can have a talk with the Principal Commissioner. 7. While granting time to Mr. Jetly as prayed for, we express our complete shock and surprise by the manner in which the aforesaid orders dated 29.01.2021 have been passed in complete violation of the High Court's order dated 21.01.2021. 8. Stand over to 03.02.2021 for further consideration. To be taken up First on Board. 6. Thereafter, the cases were taken up on 3rd February, 2021. On that day Mr.Jetly furnished before us copies of fresh provisional release order dated 2nd February, 2021 in respect of all the petitioners. He clarified that the earlier orders dated 29th January, 2021 were withdrawn whereafter the fresh set of orders dated 2nd February, 2021 have been passed. Liberty was granted to the petitioners to amend the writ petitions by incorporating the provisional release orders dated 2nd February, 2021 and also to examine the conditions imposed for provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the conditions imposed for provisional release. 9. On the other hand, Mr.Jetly learned senior counsel for the respondents submits that in terms of the direction of this court, Principal Commissioner of Customs has now passed the orders for provisional release with conditions which are necessary to protect the interest of the revenue. If the petitioners are aggrieved by the conditions, they can prefer appeal against the conditions imposed in the orders of provisional release. 10. Submissions made by learned counsel for the parties on the question of interim prayer have been duly considered. 11. At the outset, we may deal with the submissions made by Mr. Jetly that petitioners should be relegated to the appellate forum for redressal of their grievance pertaining to the conditions imposed in the orders of provisional release. 12. On due consideration, we cannot agree with such submissions made by Mr.Jetly. In all the writ petitions challenge have been made to the orders of seizure which will be gone into in due course. However, in the proceedings held on 21st January, 2021 this court took the view that at this stage it would meet the ends of justice if provisional rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents to prove the ownership of the goods to the satisfaction of the Adjudicating Authority. 15. Before dwelling on the above conditions, we may briefly refer to one of the impugned seizure memos since all the seizure memos are identically worded having similar allegations against the petitioners. The basic allegation is that the exporter is not operating its business from the notified address and is existing only on paper. Therefore, under the reasonable belief that the exporter is indulging in some fraudulent practices the seizure has been made. 16. Since we are not dealing with the challenge to the seizure memos at this stage, we refrain from making any comment thereon. 17. Reverting back to the conditions imposed in the provisional orders of release dated 2nd February, 2021, we may refer to some of the definitions given in section 2 of the Customs Act. As per section 2(3A) beneficial owner has been defined to mean any person on whose behalf the goods are being imported or exported or who exercises effective control over the goods being imported or exported. Exporter is defined under section 2(20). As per this definition, exporter in relation to any goods a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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