M/S. G S Sales Corporation vs Commissioner Of Customs, Mundra

(Arising out of Order-VIII-48-303-EXP-MP&SEZ-14-15 dated 19.02.2015, Passed by Deputy Commissioner of Customs, Mundra)

M/s. G S Sales Corporation : Appellant (s) M/s Goyal International M/s Jolly Overseas M/s Crystal Impex M/s NMR Exports M/s Saira International M/s JBS Exports M/s Gold Range Casting Pvt Limited M/s SJS International

VERSUS

Commissioner of Customs, Mundra : Respondent (s)

Represented by :

For Appellant (s) : Shri Naveen Kumar Bindal, Advocate For Respondent (s) : Shri S.K. Shukla, Authorised Representative

For approval and signature :

Mr. H.K. Thakur, Honble Member (Technical)

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 3 Whether their Lordships wish to see the fair copy of the Order?

Seen 4 Whether Order is to be circulated to the Departmental authorities?

Yes

CORAM :

Mr. H.K. Thakur, Honble Member (Technical)

Date of Hearing / Decision : 01.05.2015

ORDER No. A/10469-10477/2015 Dated 01.05.2015

Per : Mr. H.K. Thakur;

These appeals have been filed by the appellants with respect to conditions imposed by the respondent under orders for provisional release of the goods under different shipping bills filed by the appellants.

2. Shri N.K. Bindal (Advocate) appearing on behalf of the appellants argued that appellants filed shipping bills for claiming drawback under Customs Tariff Heading 73.08 under the Customs Act, 1962. That the case was investigated against the appellants for over-valuation of goods for claiming higher drawback rates. Learned Advocate relied upon the judgment dated 27.3.2014 of Honble Gujarat High Court in case of B.S. Scaffolding Industries vs. UOI & Ors. It is the case of the appellant that joint investigation in all these cases was undertaken and seizure memo dated 20.01.2015 was made by the investigating agency DRI, Ahmedabad Zonal Unit, Ahmedabad. He made the Bench go through annexure A to the seizure memo dated 20.01.2015, under which the appellants in the present case and in the appeal before the Honble Gujarat High Court in Special Civil Application NO. 5173 of 2015, are common. Learned Advocate argued that as per Honble Gujarat High Court order dated 27.3.2014 on the same issue, seized goods have been allowed to be cleared provisionally by furnishing bond of an amount equal to the value of seized goods without any cash security/ Bank guarantee. As per the order passed by the Honble High Court, the office of the Principle Commissioner, Customs, Mundra vide letter dated 13.04.2015 has allowed to provisional release the seized goods only on execution of a Bond. Learned Advocate argued that the conditions imposed by the Revenue under letter dated 19.02.2014 in the present proceedings were by executing the bonds of an amount equivalent to the value of goods with 25% of Bond value as Bank guarantee. It was argued that the provisional release order may be modified in the light of order dated 27.03.2014 passed by the Honble Gujarat High Court.

3. Shri S.K. Shukla (AR) appearing on behalf of the Revenue argued that appellants have no jurisdiction to file appeal against a provisional release order passed by Revenue, in view of Larger Bench judgment in the case of Akanksha Syntax Pvt. Limited vs. Commissioner of Customs (General), Mumbai  [2013 (289) ELT 186 (Tri. Mum.)]. Learned AR made the Bench go through Para 13.1 of Larger Bench judgment to bring home the point home that no appeal would lie with CESTAT.

4. As a counter to the arguments made AR, learned Advocate appearing on behalf of the appellants argued that in the case of Auto Dynamic Corporation vs. UOI & Ors in CWP No. 28025 of 2013 dated 17.02.2014. Honble Punjab & Haryana High Court directed the appellant in that case to avail alternative remedy of filing appeal under Section 129A of the Customs Act, 1962. Learned Advocate specifically brought to the notice of the Bench Para 2 of this order dated 17.02.2014 passed by the Honble High Court, where the Revenue itself had argued that appeal against the provisional release order lies with CESTAT under Section 129A of the Customs Act, 1962. He also brought on record a letter dated 31.03.2014 in the case of Auto Dynamic Corporation vs. Commissioner of Customs, Amritsar in Appeal No. C/51165/2014. In this case, Division Bench CESTAT Delhi under final order No. 51469/2014 modified the condition of provisional release. It was his case that a same view was taken by another Bench of CESTAT Delhi as per order in the case of S.K. Petrochem vs. Commissioner of Customs, Amritsar  [2013 (298) ELT 75 (Tri. Del.)].

5. Heard both sides and perused the case records. In the present proceedings the issue involved is whether the conditions imposed for provisional release of the seized goods are excessive. It is observed from the order dated 27.3.2015 passed by the jurisdictional Gujarat High Court in SCA No. 5175 of 2015 that similarly placed goods have been allowed to be provisionally released by executing a bond equivalent to the value of seized goods without insisting for any Bank Guarantee/ Cash security. Reliance placed by the learned AR on the Larger Bench judgment of Akanksha Syntax Pvt. Limited vs. Commissioner of Customs (General) Mumbai (supra) will not help the case of the Revenue as similar appeals against such orders are being entertained by the other Benches and also because on the same proceedings the jurisdictional High Court vide order dated 27.3.2015 has also modified the condition of provisional release. The office of the Principle Commissioner of Customs, Mundra has also provisionally released the seized goods on execution of a Bond with respect to similarly placed exporters. Therefore, in the interest of justice, it will be proper to allow the appeals filed by the appellants by modifying the conditions of provisional release of the seized goods.

6. In view of the above observations, it is ordered that the provisional release of the seized goods with respect of present appeals should be allowed on the basis of execution of a Bonds equivalent to the amount of value of seized goods, without insisting for any bank guarantee/cash security, as it is a case of export and foreign exchange earning. It is directed that needful should be done within 10days from the receipt of this order as the exports relate to live consignments.

It is ordered that the order be served Dasti.

(Order dictated and pronounced in the Court)

(H.K. Thakur) Member (Technical) .KL

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