Delhi High Court
M/S Diamond Export (Through Its ... vs Commissioner Or Customs ... on 30 January, 2020
$~37.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 11586/2019
% Decided on: 30th January, 2020.
M/S DIAMOND EXPORT (THROUGH: ITS
PARTNER- MR. JAYANT GURJAR) ..... Petitioner
Through: Mrs.Anjali Jha Manish, Adv. with
Mr.Priyadarshi Manish, Ms.Jasmeet Kaur, Advs.
Versus
COMMISSIONER OR CUSTOMS (EXPORTS) ICD,
TUGHLAKABAD, NEW DELHI AND ORS ..... Respondents
Through: Mr.Amit Bansal, Adv. with Mr.Aman
Rewaria, Ms.Vipasha Mishra, Mr.Akhil
Kulshreshtha, Advs. for R-1&2.
Mr.Aditya Singla, Adv. for R-3/DRI.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT
: D.N.PATEL, Chief Justice (Oral)
1. This writ petition has been preferred with the following prayers:-
"In view of the aforementioned facts and circumstances it is
therefore most respectfully prayed that this Hon'ble court may
be pleased to:
(a) Issue a writ, order or direction in the nature of
mandamus to release the export consignment covered
under shipping bill No.4487348 dated 28.05.2019
unconditionally for the purpose of export as no seizure
has been made and the goods have been detained from
10.06.2019; and/or
(b) Issue a writ, order or direction in the nature of certiorari
to set aside/modify the conditions provided in the
communication bearing C.No.VIII/ICD/6/TKD/SIIB-
Exp./Misc./DRI Indore/109/ 19/Pt.-1 dated Nil but signed
on 09.10.2019; and/or
(c) Issue a writ, order or direction in the nature of
mandamus to the Respondents to de-freeze the bank
account of the Petitioner bearing Account No.
10043458285 situated at ICICI Bank, Plot N0.5I-E/B,
Saket Nagar, Indore; and/or
(d) Issue a writ, order or direction in the nature of
mandamus to the Respondents to issue detention
certificate against shipping bills bearing No.4487348
dated 28.05.2019;
(e) Grant cost of the petition;"
2. Having heard the learned counsel for the parties and looking to the
facts and circumstances of the case, it appears that the goods in question are
mixed cotton printed handloom bed sheets. The value declared in the
shipping bills by the petitioner for the goods to be exported was at
Rs.2,20,72,852/-. The goods were detained by the respondent authorities for
the over-valuation. Samples were drawn and sent to Ahmedabad Textile
Industrial Research Association and the value of the goods, after getting the
report from the aforesaid institution, was found @ Rs.22,28,700/-. The
goods were seized on 31st August, 2019 under Section 110 of the Customs
Act, 1962.
3. Respondent No.1 has filed counter affidavit and paragraphs 4 and 5 of
the same reads as under:-
"4. That regarding provisional release of the goods covered
by the said shipping bill, respondent no. 3, had intimated that
they have no objection if the seized goods of the exporter are
provisionally released after safeguarding revenue on furnishing
of suitable bank guarantee and bond in terms of Board's
Circular No. 0l/2011-CDS dated 4.1.2011.
5. That, accordingly, the answering respondent, had given
an option to the petitioner for provisional release of goods on
submission of bond of 100% of FOB value of goods and bank
guarantee of 5% of FOB value of goods on 09.10.2019.
However, no response has been received from the petitioner till
date."
4. Respondent No.3 has also filed a counter affidavit wherein in
paragraphs D, E and G, it is stated as under:-
"D. Therefore, in exercise of the powers conferred under
Section 110 (1) of the Customs Act, 1962, the goods
under the afore-mentioned Shipping Bill were duly
seized on 31.08.2019 under the reasonable belief that
they were to be improperly exported by way of mis-
declaration (overvaluation).
E. Summons were issued to Mr. Jayant Gurjar (Partner of
the petitioner firm) and his statement has been recorded
under Section 108 of the Customs Act, 1962 on 3
occasions, first on 06.07.2019, 27.09.2019 and then on
07.01.2020, whereby he admitted overvaluation of goods
to be exported and till date no retraction of statement has
been filed.
xxx xxx xxx
G. The answering respondent vide letter dated 27.09.2019
from Shri Jayant Gurjar, Partner of M/s. Diamond Export
has come to know that a request was made by the
Petitioner for provisional release of goods and the same
was allowed by the concerned authority, on the
fulfillment of following 3 conditions:
i) Submission of 1000/0 of FOB value of Shipping Bill.
ii) Submission of Bank Guarantee of 50/0 of total FOB.
iii) Submission of undertaking that the petitioner will not
contest the description and quality of goods covered
under the said Shipping Bill.
It is submitted that since the subject goods have been
found to be overvalued, they can only be provisionally
released after safeguarding the interest of revenue on
fulfillment of the said conditions in terms of Board's
Circular No. 01/2011 Cus. dated 04/01/2011."
5. In view of the aforesaid submissions, it is clear that the goods have
already been ordered to be provisionally released upon certain conditions
and, therefore, we see no reason to entertain this writ petition.
6. We may note that the Supreme Court has in its recent decision in
State of Uttar Pradesh vs. Kay Pan Fragrance Pvt. Ltd. 2019(31) GSTL
385 (SC) has criticized the practice of writ Courts directing release of the
seized goods where the statute provides for provisional release.
7. It is further submitted by learned counsel for the respondents that the
bank account of the petitioner has also been de-freezed on 1st November,
2019.
8. Learned counsel appearing for the petitioner has argued about the
conditions imposed for the provisional release of the goods. Since, an order
of the provisional release is appealable order, hence also, we see no reason
to entertain this writ petition.
9. Accordingly, the writ petition is dismissed.
CHIEF JUSTICE
C.HARI SHANKAR, J
JANUARY 30, 2020/„anb‟
