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TMI Blog2022 (6) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... provisional release to the goods imported vide the Bills of Entry impugned in the present case. The correct approach would have been for the Respondent to challenge the correctness of the said provisional release order before this tribunal. The condition of furnishing the bank guarantee to the extent of 15% of the value of goods or 15% of the duty value itself requires to be tested in terms of the law delivered on the issue in the case of AMIT ENTERPRISES VERSUS UNION OF INDIA [ 2011 (5) TMI 375 - PUNJAB HARYANA HIGH COURT] , wherein the Hon ble Punjab and Haryana was pleased to modify the condition of furnishing of bank guarantee of 25% of the market value of the seized goods on the ground that the petitioner therein had paid duty as per the valuation of the department. Tribunal in the case of M/S SRK MANUFACTURING VERSUS COMMISSIONER OF CUSTOMS, LUHIANA (VICE-VERSA) [ 2022 (1) TMI 220 - CESTAT CHANDIGARH] had deleted the condition of furnishing the bank guarantee equivalent to the 30% of the value of goods on the ground that the appellant therein had paid duty on the declared value and had accepted to pay the entire differential duty as well. The present case stands a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lading and Country of Origin Certificate, etc. were filed by the Appellant along with the aforesaid Bills of Entry under Section 46 of Customs Act, 1962 ( the Act ). The Appellant admittedly has not availed any duty benefit on the basis of the said COO or otherwise and was willing to pay duty at appropriate rate. 4. During the course of physical examination of the goods imported under the Bills of Entry, it was observed by the assessing officer that the said goods appear to be of Iran origin and not Zambia and on the basis of the said observation, Inspector Customs, ICD, Tumb under the instruction of the Respondents issued Detention Memo dated 20.01.2022 informing the Appellant not to remove, sale or part with or deal with, in any other manner without permission of competent authority of Customs, ICD Tumb. 5. Based on the above, an inquiry was initiated against the Appellant, and statements of officials were recorded under Section 108 of the Customs Act, 1962. While the investigation was ongoing, seizure memo dated 02.02.2022 was issued by the Deputy Commissioner of Customs, ICD Tumb under Section 110(1) of the Act in respect of the four Bills of Entry seizing the goods under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y without claiming benefit under any FTA Regulation. - Once the entire duty is paid then the question of giving any further bank guarantee towards provisional release of goods is uncalled for and contrary to the law laid down on the issue. The following decisions are relied upon - Amit Enterprises Vs. Union of India [2011 (269) ELT 314 (P H) - Om Udyog vs. Joint Commissioner of Customs [2013 (287) E.L.T 48 (P H) - Kuber Casting (P) Ltd. Vs Union of India [2013 (297) E.L.T. 4 (P H) - Sada Sukhi Electronics (p) Ltd. Vs. Commissioner of Customs (Seaport Import) [2014 (304) ELT 42 (Madras)] - SRK Manufacturing versus Commissioner of Customs, Ludhiana [2022 (1) TMI 220 CESTAT CHANDIGARH] - Aban Exim Pvt. Ltd. Vs. Commissioner of Customs [2014 (309) E.L.T. 485 (Del.)] - Umiya Enterprise vs. Asst. State Tax Officer, SGST Dept., Palakkad [2020 (35) G.S.T.L 78 (Ker.)] - Deenanath Maurya vs. Commissioner of Customs, Lucknow [2021 (378) E.L.T 626 (Tri. All.)] - Without prejudice to the aforesaid and in any event, admittedly, vide letter dated 04.02.2022, the department had permitted clearance of the goods imported vide impugned Bills of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the said Country of Origin certificate is forged and/or false and therefore keeping in mind the facts of the case, the order directing furnishing of bank guarantee to extent of 15% of the value of the seized goods is incorrect moreso when the entire duty is being paid. 12. Shri. J. A. Patel, Learned Superintendent (Authorised Representative) during the hearing had submitted that the order dated 06.04.2022 which was issued after the approval of the Competent Authority is correct and proper in law considering the fact that the goods were imported from Iran as against Zambia. 13. We have carefully considered the submissions made by both the sides and perused the records. In the present case, the appellant herein had imported Cooper Cathodes under Bills of Entry annexed from Page 23 to Page 30 of the Appeal Memorandum. The details of the import is reproduced below for the ease and reference. Sr. No Bill of Entry No. Date Description of Goods imported as per import document Weight of the goods (in MT) Value of the goods (in Rs.) 1. 7078275 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mes functus officio (ceases to have control over the matter) once a judgment is pronounced or the order is made. Such judgment and order, when becomes final, cannot be altered, changed, varied or modified unless the statute, whereunder the Court, Tribunal or the adjudicating authority functions, so permit. There can also be no doubt that the power of review is not an inherent power. The right to seek review of an order is neither natural nor fundamental right of an aggrieved party. Such power must be conferred by law. If there is no power of review, the order cannot be reviewed. However, a Court, having plenary power, is not affected by any statutory restrictions in reviewing its own order. In Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, reported in (1971) 3 SCC 844, the Supreme Court, while dealing with the provisions of Saurashtra Land Reforms Act, 1951, and referring to Order 47 Rule 1 of the CPC, held that there is no inherent power of review with the adjudicating authority if it is not conferred by law. The observations read, It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milarly, requirement of furnishing bank guarantee equal to 25% of the full market value of the seized goods is also, in the facts and circumstances of the case, arbitrary. Mere fact that condition of 10% of bank guarantee was upheld by this Court in T.L. Verma and M/s. Kundan Rice Mills cannot be justification to impose such conditions in each and every case. In those cases, this Court was satisfied that the importers had adopted fraudulent tactics which, prima facie, justified opinion for confiscation of goods. The said judgments cannot apply to every case of detention. Mere allegation of liability to confiscation is not enough. Circumstances and grounds justifying opinion about liability to confiscation is open to judicial scrutiny. 12 . Power of detention of goods is a drastic power and exercise of such power has to be hedged by safeguards to check its abuse and limit its exercise only to situation where it is intended by law to be exercised. Existence of power and exercise of power are independent. Mere fact that there is a power to confiscate does not mean that such power could be exercised mechanically or arbitrarily. The authority exercising such power must strictly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) the procedure must withstand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must also be liable to be tested with reference to Article 14. As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorizing interference with personal liberty and right of privacy must also be right and just and fair and not arbitrary, fanciful or oppressive. If the procedure prescribed does not satisfy the requirement of Article 14 it would be no procedure at all within the meaning of Article 21. 14 . Reasonableness being part of fundamental right under Article 14, doctrine of proportionality can be invoked so that unequals are not treated as equals. The exercise of discretion has to be proportionate to the wrong which has led to the action. The doctrine of proportionality has been explained in Om Kumar v. Union of India, AIR 2000 SC 3689, wherein it was observed :- 28. By proportionality , we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures has been made by the legislature or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order has already been reproduced above. As per the order the conditions imposed for provisional release are as under: The goods are to be provisionally released:- (i) the goods are to be subjected to mutilation so as to render them as scrap (ii) furnish bond equal to the value of the impugned good. (iii) furnish Bank Guarantee equivalent to 30% of the value of the goods. (iv) pay the differential duty assessed by the department. 29. The Ld. Counsel for importer has submitted that they have no objection to comply with all the above conditions except the condition to furnish Bank Guarantee equivalent to 30% of the value of the goods. It is submitted by him that they have paid the entire duty on the declared value and also willing to pay the differential duty if any assessed by the department. We find that when the importer has made such payments and the goods having been mutilated to render them as scrap so as not to be reused as such for any purpose, the condition to furnish BG in addition to bond isnot warranted or justified. 30. The commissioner (Appeals) has relied on the judgments in the case of Bhaiya Fibre Ltd (supra) and Max Enterpr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y do. 32. In the result, the impugned order is modified to the limited extent of setting aside the direction to furnish Bank Guarantee of 30% equivalent to the value of the goods. The appeal filed by importer C/60419/2021 is partly allowed in above terms. The appeal filed by Revenue C/60469/2021 is dismissed. 21. Similar, view has been taken by various other courts in the following decisions. - Om Udyog vs. Joint Commissioner of Customs [2013 (287) E.L.T 48 (P H) - Kuber Casting (P) Ltd. Vs Union of India [2013 (297) E.L.T. 4 (P H) - Sada Sukhi Electronics (p) Ltd. Vs. Commissioner of Customs (Seaport Import) [2014 (304) ELT 42 (Madras)] - Aban Exim Pvt. Ltd. Vs. Commissioner of Customs [2014 (309) E.L.T. 485 (Del.)] - Umiya Enterprise vs. Asst. State Tax Officer, SGST Dept., Palakkad [2020 (35) G.S.T.L 78 (Ker.)] - Deenanath Maurya vs. Commissioner of Customs, Lucknow [2021 (378) E.L.T 626 (Tri. All.)] 22. In all the above cases the condition to furnish bank guarantee on the value of goods was deleted. Infact in some case the party was directed to provide BG towards differential duty. 23. The present case stands at a better foo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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