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TMI Blog2009 (10) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... e supplier to supply ADSL port and related broadband equipment for a total capacity for 10,000 subscribers. These agreements were entered into on 2.12.2004 and on that basis the petitioner imported the aforesaid equipment which reached India between 23.12.2004 and 24.6.2005. The petitioner got the equipments cleared on payment of requisite customs duty of Rs.5,72,86,977.79p. We may mention at this stage itself that though the equipment was valued at Rs.24,33,21,540/-, the petitioner had not paid any such amount to the supplier in China. In fact, no amount was paid by the petitioner to the supplier at all. The imported equipment, however, could not be provided to BSNL as much before the equipment could reach India, BSNL terminated the contract of the petitioner vide notice dated 10.12.2004 with effect from 9.1.2005. The case of the petitioner is that because of this arbitrary termination of the contract, the equipment could not be utilized and remained in unpacked condition in its godown. 3. Against the termination of the contract, the petitioner filed a petition under Section 9 of the Arbitration and Conciliation Act, 1996 in this Court being OMP No. 482/2004. Though vide order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he supplier informed DRI about this with a request to release the original documents to the petitioner for filing the said amendment in the shipping bills so that goods could be shipped to China. However, the DRI refused to release the original documents even when the petitioner kept on sending various letters and reminders to the authorities in this behalf. Thus, according to the petitioner, goods have been illegally seized and retained by the respondents without compliance of mandatory procedure contained in Sections 105 and 110 of the Act and, therefore, the petitioner filed the present petition on 6.11.2007 with the following prayers :- "a) issue a writ of Mandamus or any other appropriate writ, order of direction be issued against the respondents to hand over the original documents together with the goods illegally seized by the respondents for being re-exported to the consignor forthwith; b) issue writ of Certiorari or any other appropriate writ, order or direction be issued and after calling the records, see the propriety, legality and validity of the order and quash the same, allow the petitioner to re-export the goods immediately and refund the Customs duty in accordanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they would be required to file fresh shipping bills, which would render all the shipping bills hit by the limit of two years prescribed under Section 74 of the Act. (e) On invoice of 80,000 USD paid as 'professional services' to the overseas consignor (located in Israel) by the supplier in respect of goods supplied to the petitioner in India has come to the notice recently. These charges were not declared and included in the assessable value at the time of import. This needs to be inquired further as to whether these charges are includible in the assessable value of goods from the angle of undervaluation of import goods and consequent evasion of duty." As per DRI's report, the petitioner has not fulfilled the conditions of Section 74 and Section 76 of the Act. 7. The matter was, therefore, under investigation. Pending investigation it was decided to provisionally release the goods of the petitioner for the purpose of re-export, subject to execution of a Bond. The petitioner was informed about this provisional release for re-export vide letter dated 5.12.2007. The respondents have also stated that the goods were seized and, therefore, requirement of drawing of panchnama did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods were seized and even till the expiry of six months, i.e. 14.8.2007, no show-cause notice was issued, which is required to be done under Section 110(2) of the Act and, therefore, continued retention of such goods clearly became illegal. He submitted that the term 'seizure' has to be given its proper meaning and whenever there is an interference with the possessory rights or where the dominion of goods is transferred, which is not legal, it would not amount to seizure. If the seizure is illegal, the petitioner had civil right to seek return of such goods. Support of the judgment of this Court in the case of Rajesh Arora v. Collector of Customs, 1998 (101) ELT 246 was sought to be taken to buttress this plea. It was further argued that even when the investigation was completed on 11.6.2007, goods were still retained and, therefore, the respondent was to bear the charges. With regard to duty drawback, it was argued that the same was legally drawn and it could not be a reason to retain the goods. 10. Detailed submissions on the aforesaid aspects were made by the learned counsel for the petitioner. 11. Mr. Chandhiok, learned Addl. Solicitor General appearing for the respondents, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts for further investigation, inasmuch as, the request for release of documents was made for the first time only on 27.3.2007. Information regarding change of consignee was also received only on 28.4.2007. Thereafter, till filing of the petition on 6.11.2007, no request for release of goods was made. This request was made for the first time only on 5.12.2007 and request for release of documents was made on 7.12.2007. He submitted that there was not even an allegation that documents were with the respondent. The learned ASG has referred to various provisions of the Act, particularly Sections 60(2), 51, 110, 124 and 149 of the Act, on the basis of which he explained the scheme of seizure and confiscation as per the aforesaid provisions. He also argued that there was no order of seizure. Only documents were required for investigation and it was permissible for the respondents to carry out the said investigation in view of the information received, as explained above. He pointed out that under Section 18 of the Act, assessment of the duty could be made even in case of duty drawback. 13. After considering the respective arguments, we are of the opinion that in the facts of this case i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on had already been filed and was pending in this Court. The petitioner never moved any application challenging the said condition of furnishing Bond and seeking orders allowing re-export without such stipulation. What is more important is that no attempt is even made to amend the petition and incorporate the prayer challenging the condition of furnishing a Bond imposed for re-export. In the absence of any such miscellaneous application or amendment in the prayers, this Court cannot go into the issue as to whether such a condition was rightly put or not. 16. When we proceed with the matter on this basis, the irresistible conclusion is that the state of affairs in which the petitioner has landed is its own creation. Insofar as the respondents are concerned, pending investigation, they had allowed the re-export on provisional basis. However, the petitioner did not utilize this opportunity. In the meantime, show-cause notice dated 2.8.2009 under Section 124 of the Act has been issued calling upon the petitioner to show-cause as to why :- "(a) Let Export Order granted under Section 51 of the Act should not be cancelled for - (i) misdeclaration of name and address of the consignee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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