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The Customs Act, 1962
The Live- Stock Importation Act, 1898
The Prevention Of Food Adulteration Act, 1954
M/S. Shah Devchand & Co. And ... vs Union Of India And Another on 25 July, 1991
Section 124(a) in The Customs Act, 1962

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Bombay High Court
Bhavik K. Shah vs Union Of India And Others on 11 July, 2011
Bench: Dr. D.Y. Chandrachud, Anoop V.Mohta

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Bhavik K. Shah .... Petitioner vs

Union of India and others .... Respondents Mr. P. A. Augustin for the petitioner.

Mr. Pradeep S. Jetly for the respondents.



DATE : July 11, 2011

ORAL JUDGMENT (Per Dr. D. Y. Chandrachud,J):

The Petitioner has, in these proceedings under Articled 226 of the Constitution, sought a declaration that the detention of certain goods after the expiry of the statutory period of limitation of six months after its seizure is illegal and unsustainable by virtue of the provisions of Section 110 of the Customs Act, 1962. 2 During the course of the hearing, counsel appearing on behalf of 2 wpl-1168-11.sxw

the Petitioner has, in view of the judgment of a Division Bench of this Court in Jayant Hansraj Shah v. Union of India1, urged a more restricted submission for relief. In the judgment of the Division Bench it has been held that it is only in a case where no provisional order has been passed for the release of seized goods and if no notice has been issued under Section 124(a) of the Customs Act, 1962 for confiscation of goods would Section 110(2) be attracted and the Department would be bound to release the goods. In the present case, it is an admitted position that by an order dated 24 May 2011, the Commissioner of Central Excise and Customs, Surat-I has allowed provisional release of the goods against a bond and a Bank Guarantee of Rs.1,81,69,875/-.

3 In that view of the matter, the only submission which has been urged at the hearing is that the condition which has been imposed of furnishing a bank guarantee in the sum of Rs.1.81 crores for the provisional of the goods must be modified in view of the instructions of the Central Board of Excise and Customs. The instructions in the Manual stipulate thus:

"5. To avoid delays in the release & minimise 1 2008(229) E.L.T. 339 (Bom.)

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hardship to importers which is caused if goods remain detained pending investigation into any dispute in relation to assessment etc., a number of instructions have been issued recently. The stress is on expeditious assessment/investigations and unless the goods are prohibited or involved in serious fraud even if there is a dispute in assessment etc., provisional release option be given to the importers. Broadly the following guidelines are to be followed by importers/officers of the Department to keep a check on unnecessary detention of goods & ensure speedy Customs clearance:-

(a) .....

(b) .....

(c) But for certain exceptional categories, in any dispute case pending investigation wherever importer or exporter is willing, he should be allowed provisional clearance of the goods by furnishing a bond for full value of the goods supported by adequate bank guarantee as may be determined by the proper officer. (The value of bank guarantee shall not exceed twice the amount of duty). The provisional clearance should be allowed as a rule and not as an exception. However, in the following situations, provisional release may not be resorted to : (i) The prohibited goods whose import/export are not in the interest of the country;

(ii) imports which do not comply with the prescribed specifications/conditions/requirements of various Orders/Acts, (e.g. Those laid down under DGFT Notification Nos. 3 to 5/(RE-2011)/1997-2002 dated 31.3.2001); Livestock Importation Act, 1898, Prevention of Goods Adulteration Act, 1954, etc.);

(iii) where gross fraudulent practices are noticed and it is viewed that release of the consignment may serious jeopardize further investigations as also interest of the revenue."

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4 An affidavit in reply has been filed in these proceedings by the Deputy Director in the Directorate of Revenue Intelligence, Mumbai. In the affidavit, it has been stated that the Petitioner is a Director of a company by the name of Technomach India Pvt.Ltd. (TIPL) which is a manufacturing unit based in the Special Economic Zone at Surat. The unit was allowed duty free import of precious metal solutions and certain jewellery making machines. The unit being based in an SEZ, the goods imported were not subject to inspection/examination by Customs and were cleared on the basis of declarations made by the unit. The unit was importing plating solutions from foreign suppliers under a claim of exemption of Customs duty under the SEZ scheme. These imports were supposed to be made for export of authorised products. However, investigations by the DRI reveal that the Petitioner had unauthorisedly sold the duty free materials in the local market in contravention of the scheme. Statements were recorded of the accountant of the unit as well as of one of the major buyers of the diverted materials. The investigation has revealed that the Petitioner procured fake purchase bills to show domestic purchase of plating solution. The description, quantity and value of the imported solution was alleged to have been mis-declared. The investigation has also 5 wpl-1168-11.sxw

revealed that in order to ostensibly complete the export obligation, the Petitioner exported junk material consisting of metal scrap and cheap ink/phenyl solutions. Money generated out of the illegal sale of diverted materials is alleged to have been routed through the hawala channel. Accordingly, by an order dated 7 February 2011 the Development Commissioner of the Surat SEZ suspended the letter of approval dated 30 August 2007 issued to the unit. 5 Having regard to the disclosures which have been made in the affidavit, it cannot be said that there is any breach of the guidelines contained in the Manual. The Petitioner, obviously, cannot rely on the guidelines contained in the Manual to the effect that the value of the bank guarantee shall not exceed twice the amount of duty since that part of the guidelines is not to apply to a case involving a serious fraud. In this view of the matter, the basis on which the Petitioner has claimed a benefit under the guidelines contained in the Manual is without any foundation. No case for interference under Article 226 of the Constitution is made out. The Petition is dismissed accordingly. There shall be no order as to costs.

6 Counsel appearing on behalf of the Petitioner has stated that the 6 wpl-1168-11.sxw

Petitioner proposes to make an application before the Commissioner, Central Excise, Surat so as to seek permission for the furnishing of bank guarantees in part and to obtain prorata release of the goods. In the event that any such application is made, the Commissioner of Central Excise, Surat will consider the application in accordance with law and take a decision thereon.