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TMI Blog2023 (12) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner s application for the provisional release of the goods is restored before respondent no. 6. Considering that the goods involved are perishable, respondent no. 6 is directed to decide the matter afresh and pass a speaking order within a period of four working days from date after hearing the petitioner - The petitioner shall appear before respondent no. 6 on 11.12.2023 at 10:30 a.m. Application disposed off. - HON'BLE MR. JUSTICE VIBHU BAKHRU AND HON'BLE MR. JUSTICE AMIT MAHAJAN For the Petitioner Through: Mrs Anjali Jha Manish, Mr Priyadarshi Manish and Mr Saksham Garg, Advocates. For the Respondents Through: Mr Harpreet Singh, Senior Standign Counsel with Ms Suhani Mathur and Mr Jatin Kumar Gaur, Advocates. VIBHU BAKHRU, J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... propriate writ, order or direction in the nature of declaration, declaring that the impugned Circular No.35/2017-Cus dated 16.08.2017 as ultra vires and violative of Section 151A of the Customs Act, 1962; and/or (b) Issue a writ order or direction in the nature of certiorari to set-aside the order bearing No. GEN / INV / OTH / 360 / 2023- ICP-ATR-Cus-Prev-Amritsar dated 02.12.2023 (DIN No. 20231275NH000041944C) passed by the Learned Deputy Commissioner of Customs, Land Customs Station, ICP, Attari, Amritsar; (c) Grant the cost of the petition; and (d) Pass such and further order(s) as may deem fit and necessary in the facts and circumstances of the present case. 2. In particular, the petitioner challenges paragraph 2 of the Circular No. 35/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating authority upon a request made by the owner of the seized goods, provisional release shall not be allowed in the following cases - (i) Goods prohibited under the Customs Act, 1962 or any other Act for the time being in force; (ii) Goods that do not fulfill the statutory compliance requirements/obligations in terms of any Act, Rule, Regulation or any other law for the time being in force; (iii) Goods specified in or notified under Section 123 of the Customs Act, 1962; (iv) Where the competent authority, for reasons to be recorded in writing believes that the provisional release may not be in the public interest. 2.1 Seized imported goods shall be released provisionally by the competent authority upon request of the owner of the seize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble for the CBEC, by executive fiat, to incorporate limitations, on provisional release of seized goods, which find no place in the parent statutory provision, i.e. Section 110A of the Act. Executive instructions may, it is trite, supplement the statute, where such supplementation is needed, but can never supplant the statutory provision. 29 ( 29Lok Prahari v State of U.P., (2016) 8 SCC 389, which digests several earlier decisions.) By excluding, altogether, certain categories of goods, from the facility of provisional release, para 2 of Circular 35/2017- Cus supra clearly violates Section 110A, whereunder all goods, documents and things, are eligible for provisional release. Goods, which are eligible for provisional release under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been fixed in the light of paragraphs 2.1 and 2.2 of the impugned circular. Thus, prima facie, the impugned order is also liable to be set aside. 11. Although we are inclined to allow the present petition in the aforesaid terms, as Mr. Harpreet Singh, learned counsel appearing for the respondents, has been unable to counter the submissions made today. However, in view of the fact that he requests for some time to take instructions, we consider it apposite to adjourn the proceedings to tomorrow. 12. The present petition has been taken up urgently as the goods in question are perishable in nature. 13. List on 08.12.2023. 14. Dasti under the signature of the Court Master. 5. Mr. Harpreet Singh, learned senior standing counsel appearing for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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