HEMANT GUPTA,J. - (1.) THE petitioner-Company, engaged in trading of imported as well as the indigenous glass, has invoked the writ jurisdiction of this Court against the action of the respondents, whereby the goods imported by the petitioner had been seized and subsequently ordered to be released on fulfilment of certain conditions.
(2.) IT is the case of the petitioner that Glass is imported by it, which is released after payment of custom duty under the Customs Act, 1962 (for short 'the Act'). The valuation of goods is guided by the data of Directorate of Valuation (for short "DOV") and the custom duty was paid on the valuation of float glass imported, which is not less than then value fixed by the DOV. It is pointed out that on 10.6.2008, the officers of the Directorate of Revenue Intelligence (for short 'the DRI') visited the office-cum-godown premises of the petitioner, and they detained the stock of imported glass valued at Rs. 23,77,513/-, even though all the documents and record pertaining to the import of glass and the payment of the custom duty was produced. Three hard disks installed on the computers in the office of the petitioner were also taken away. Vide communications dated 13.6.2008 and 30.6.2008, the petitioner requested for release of goods provisionally, but the said requests were not acceded to. It is further pointed out that the petitioner imported another 10 containers of colour and clear float class from Malaysia. They were received at Port of Import at Ludhiana. The bills of entry dated 18.6.2008 and 19.6.2008 were filed. The declared value of the goods was found to be higher than or equal to the DOV data and accordingly the assessed custom duty was paid. But, the goods were not released and on 28.6.2008, the DRI informed that the goods have been detained for further investigation. It was on 7.7.2008, the petitioner was informed that the goods detained are placed under seizure under Section 110 of the Act on the reasonable belief that the value of the same was misdeclared to evade the custom duty and on the reasonable belief that the same are liable to confiscation under Section 111 of the Act. On 8.7.2008, vide Annexure P.9, the petitioner was conveyed that the competent authority has allowed provisional release of the goods seized under Section 110A of the Act on the following conditions :- "a) You will execute Indemnity Bond equal to the market value. b) You will deposit 50% of total differential duty in cash and the rest of 50% by Bank Guarantee (or by cash) on seized goods. c) You will execute Bank Guarantee covering 10% of the Indemnity Bond value as at (a) for covering possible fine and penalty. d) You will undertake in writing that you will not dispute the identity of the goods as recorded in the seizure memo/panchnama." It is also pointed out by the petitioner that a sum of Rs. 20 lacs was got deposited by the respondents under the threat and duress and that another consignment imported vide bill of entry dated 27.6.2008 was also seized. It is, thus, contended that once a declaration of value has been made, which is over the value shown in the DOV data and such declared value has been accepted by the Custom Department and the assessed duty has been paid, the only option before the DRI is to file an appeal against the said valuation and to get the assessment order set aside, but the goods cannot be seized under Section 110 of the Act. It is also contended that the conditions imposed in the communication permitting the provisional release of the goods are onerous, without any justification and are wholly illegal and justified.
(3.) IN reply, by way of preliminary objections, it has been asserted that permission for provisional release of the goods has been granted and that alternative remedy under the Act has not been availed nor has the petitioner represented against the conditions of the provisional release. It is pointed out that acting on a specific intelligence that the petitioner was indulging in evasion of the customs duty by way of undervaluation of the imported sheet glass and reflective glass etc., the residential premises of the Managing Director, other Directors and various business/office premises of the petitioner at Chandigarh, Baddi and New Delhi were searched on 10.6.2008 by the teams of DRI under the authority and search warrants issued under the Act. During search, various records were resumed. Stocks valued at Rs. 23.70 lacs (on the rates disclosed by the petitioner's staff) were detained from the godown of the petitioner at Chandigarh, whereas the goods worth Rs. 3.22 Lacs were detained from a godown at New Delhi on 10.6.2006. It has been further pointed out that the two consignments of 10 containers containing float glass imported by the petitioner vide bills of entry dated 18.6.2008 and 19.6.2008 with declared assessable value of Rs. 16,95,939/- were detained by the DRI on 25.6.2008 for further investigation. On 28.6.2008, the petitioner was informed that he may exercise the option under Section 49 of the Act to get the detained goods de-stuffed from the containers in the premises of Punjab State Warehousing Corporation, Dhandario Kalan, Ludhiana. It was also pointed out that the premises of M/s Niveda International, Kolkata, an Indentor for the petitioner, for various overseas suppliers of glass were also searched and various incriminating documents were resumed. On 7.7.2008 all the detained goods were placed under seizure under Section 110 of the Act. On 8.7.2008, the seized goods were ordered to be provisionally released subject to fulfilment of certain conditions. It has been further pointed out that the statement of Shri T.L. Verma, Managing Director of the petitioner was recorded under Section 108 of the Act on 3.7.2008, wherein he was confronted with the evidence resumed i.e. e-mail correspondence between M/s Niveda International and Mr. T.L. Verma, between Shri Verma and foreign suppliers and between M/s Niveda International and Chinese Suppliers. There was evidence of Hawala transactions etc. The Managing Director of the petitioner remained evasive. On 4.7.2008, another statement of the Managing Director of the petitioner was recorded under Section 108 of the Act, wherein it was stated by him that Ms. Julie was representative of M/s Malaysian Sheet Glass, Malaysia and vide e- mail addressed to the petitioner, the petitioner was offered the price of Dark Grey Float Glass of 5 MM thickness as USD 5.40 per square meter. The Managing Director of the petitioner stated that the documents shown to him from the files resumed from the office of the petitioner and from M/s Niveda International, are self-explanatory and need no further explanation. It has been further pointed out that on 10.7.2008, a consignment of 5 containers imported by the petitioner from Thailand was cleared by the Customs on 5.7.2008 without intimating the DRI inspite of the prior intimation given to them. It was informed that the DRI, Chennai has detected a massive under- valuation in the import of Glass Sheets and has seized the goods worth Rs. 2.5 crores and asked all the four CFS under his jurisdiction to ensure every possible safeguard to accurately classify and evaluate the similar items so as to eliminate all the chances of undervaluation. All the four ports were also instructed to re-examine all the clearances of Glass Sheets in immediate past and to take remedial action immediately.;