OM UDYOG Vs. JOINT COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) The petitioner has filed the present writ petition under Article 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari quashing the order dated 5-7-2012 (Annexure P-7) whereby while directing the release of goods of the petitioner two conditions had been imposed. Firstly that the bank guarantee to the tune of 25% of the value of the goods i.e. Rs. 1,19,32,754/- with auto renewal clause and secondly that the party would give undertaking to the effect that the description of the goods/their quality/age/or other technical specifications/characteristics/identity, etc., including analyses/test reports as mentioned in the show cause notice dated 4-7-2012 would not be challenged by them before the Adjudicating Authority. Brief facts of the case as pleaded by the petitioner are that the petitioner-firm imported Plain Plastic Film and filed bill of entry dated 20-8-2011, which was seized by the respondent on 1-9-2011. The petitioner filed Civil Writ Petition No. 17968 of 2011 before this Court seeking release of goods and a direction was issued that the petitioner would appear before the Investigating Officer who would pass an appropriate order. The request of the petitioner for the provisional release of goods was rejected vide order dated 2-1-2012. This Court while disposing of the aforesaid Civil Writ Petition gave liberty to the petitioner to file an appeal against the said order. The seizure was extended by order dated 29-2-2012 by the respondent for a further period of six months. The appeal filed by the petitioner before the Customs, Excise and Service Tax Appellate Tribunal was allowed on 18-4-2012 on the ground that the order was violative of principle of natural justice. Thereafter, the respondents issued show cause notice dated 4-7-2012 for determining the quality of the film imported and the duty which was levied upon it and predetermined the value at Rs. 1,19,32,574/- and why it should not be confiscated. However, on 5-7-2012 the Joint Commissioner also directed the provisional release of the goods subject to the following conditions:-

(2.) The petitioner feeling aggrieved against the imposition of the conditions (ii) and (iii) has approached this court on the ground that though it had already furnished the security and was ready to furnish the bond but harsh conditions of furnishing bank guarantee to the tune of 25% of the value of the goods had been imposed. Similarly condition No. (iii) had been imposed regarding furnishing of undertaking that the identity of the goods would not be challenged before the Adjudicating Authority which was mentioned in the show cause notice dated 4-7-2012.

(3.) The said prayer was opposed by filing the written statement. A preliminary objection has been taken that the petitioner has an alternative remedy of appeal under Section 128 of the Customs Act, 1962. Justifying conditions imposed for the provisional release of the goods, it has been pleaded that the petitioner would dispose of the goods during the pendency of the adjudicating proceedings and, therefore, in such circumstances conditions imposed were appropriate. It has also been submitted that goods were liable to be confiscated yet they had been ordered to be provisionally released. On the aforesaid premises, the imposition of impugned conditions were sought to be justified.