- (1.) HEARD Shri Bharat Ji Agarwal, learned senior counsel assisted by Shri Virender Singh and Shri Rahul Agarwal, learned counsel for the petitioner and Shri R.C. Shukla, learned counsel for respondents Nos. 4 and 6 and Shri Ashok Singh, learned counsel for respondents Nos. 1, 2, 3 and 5. Learned counsel for the petitioner submits that the petitioner's goods which were covered under the bill of entries dated March 15, 2012 were cleared by the customs authorities at the airport. However, they were seized by the intelligence officer for further investigation under panchnama dated March 17/18, 2012 in Special Economic Zone (SEZ) Unit in Noida. The petitioner's case is that an order of provisional release has been issued on April 18, 2012 which has been filed at page 108 of the paper book directing the provisional release on the following four conditions: (a) A bond for Rs. 67(sixty seven) crore and a bank guarantee for Rs. 16.75 (sixteen point seven five) crore for safeguarding Government Revenue to be furnished by M/s. Kundan Rice Mills Limited, NSEZ, Noida. (b) A declaration to be furnished by the unit that they will not dispute/challenge the identity and value of the goods at a later stage. (c) That export of goods manufactured therefrom be allowed only with the DRI's approval. (d) Drawal of representative samples by DRI at the time of release of the consignment.
(2.) LEARNED counsel for the petitioner submits that the present petitioner is only aggrieved by condition No. "b" and part of condition No. "a" in so far as it directs for giving bank guarantee for Rs. 16.75 crore. Learned counsel for the petitioner submits that in view of the judgment of the Delhi High Court reported in : (2011) 267 ELT 483 (Delhi) Navshakti Industries P. Ltd. v. Commissioner of Customs, the Division Bench has taken a view that no bank guarantee of 25 per cent, under section 110A of the Customs Act is required for provisional release of goods as provided for in the Customs (Provisional Duty Assessment) Regulations, 1963. Learned counsel for the petitioner submits that the said regulation was again issued, namely, the Customs (Provisional Duty Assessment) Regulations, 2011. He submits that in the Delhi High Court's judgment similar conditions were imposed for the provisional release and the court has directed for applying the aforesaid regulations and directed for furnishing of bond of 20 per cent, of the differential duty. He has also placed reliance upon the order of the apex court which was passed in a special leave petition filed against the judgment of the Delhi High Court wherein the apex court has directed the respondents to furnish a bank guarantee of 30 per cent, of the differential duty. Learned counsel for the petitioner submits that condition No. "b" by which the petitioner is foreclosed from challenging/disputing the identity and value of goods at a later stage is onerous and unreasonable.
(3.) SHRI R.C. Shukla, learned counsel for the respondent submits that against the order dated April 18, 2012, the petitioner has alternative remedy by way of filing an appeal under section 129A of the Customs Act. He further submits that in pursuance of the circular dated January 4, 2011, paragraph 4, the petitioner is liable to give an appropriate security to the entire goods. He has relied on paragraph 4(a) of the circular. Considered the respective submissions of the learned counsel for the parties and perused the record.;