Whether voluntarily deposit can be adjusted against the estimated differential duty in the provisional release order?

PJ/CASE LAW/2015-16/2959

Case:- ESSON FURNISHING P. LTD. Versus PRINCIPAL C.C. (IMPORT), ICD, TUGHLAKABAD

Citation:- 2015 (326) E.L.T. 282 (Del.)

Brief facts and Appellant’s contention:- The petitioner is aggrieved by the fact that the goods which have been detained by the respondents at the various godowns at Delhi, Ghaziabad & Thane have not been released despite the petitioner having been complied with the conditions of the provisional release order. The petitioner had applied for provisional release and on 28-4-2015 a provisional release order had been passed by the Deputy Commissioner (SIIB), ICD - Import, Tughlakabad. The said provisional release order reads as under:-
“To
M/s. Esson Furnishing Pvt. Ltd.,
D-193, Lajpat Nagar-I,
New Delhi-110 024
Sir/Madam,
Sub :    Provisional Release of goods detained/seized at your various godowns at Delhi, Ghaziabad and Thane - reg.
Please refer to your letter dated 13-3-2015 on the above subject addressed to DRI (MZU).
In this regard, it is informed that the competent authority has allowed provisional release of the goods seized at abovementioned address, subject to the following conditions : -
(i)         On payment of estimated differential duty amounting to Rs. 33,87,526/-.
(ii)        On execution of bond for full value (seizure value in this case) of the goods, i.e. Rs. 1,17,90,039/-.
(iii)       On furnishing of Bank Guarantee of Rs. 10,16,260/-, i.e., 30% of differential duty, with auto renewal clause as per RBI guidelines.
(iv)       On furnishing an undertaking by the importer that the identity & weight of the seized goods will not be disputed/challenged at any stage.
(v)        Drawing of representative sample of goods by DRI before actual physical release.
You should comply with all the above said conditions for provisional release of the subjected goods at the earliest.

Yours sincerely,

Deputy Commissioner (SIIB)
ICD-Import, Tughlakabad

Copy to : -
(i) The Deputy Commissioner, (Bond), ICD-Import, Tughlakabad, New Delhi.
(ii) The Deputy Director, Directorate of Revenue Intelligence, Mumbai Zonal Unit, 3rd Floor, UTI Building, Sir Vithaldas Thakersey Marg, New Marine Lines, Mumbai-400 020 in respect of your office letter vide F. No. DRI/MZU/F/Int-13/2015/2930, dated 1-4-2015 for drawing of representative sample of goods before actual physical release.
Deputy Commissioner (SIIB)
ICD-Import, Tughlakabad

It is evident from the above extract that the estimated differential duty came to Rs. 33,87,526/-. The petitioner states that it had during the course of investigation deposited a sum of Rs. 35,00,000/- voluntarily towards the differential duty which at that time was roughly estimated to be Rs. 35,00,000/-. Insofar as all the other conditions are concerned, the petitioner states that he has complied with the same. The only bone of contention is with regard to the payment of the estimated differential duty of Rs. 33,87,526/-.

Respondent’s contention:- According to Mr. Satish Kumar appearing on behalf of the Customs Department, this amount is yet to be paid inasmuch as the sum of Rs. 35,00,000/- which was voluntarily deposited by the petitioner was towards the past clearances, as informed to the Customs Department by the Department of Revenue Intelligence. This is so stated in the counter affidavit filed by them.
It is also submitted by Mr. Satish Kumar that a detailed show cause has been issued on 21-8-2015 requiring the petitioner to inter alia show cause as to why the differential duty amounting to Rs. 3,62,62,555/- be not demanded and recovered in terms of the extended period under the provisions of Section 28 of the Customs Act, 1962 along with interest under the provisions of Section 28AB (28AA from 8-4-2011) of the Customs Act, 1962. The petitioner has also been required to show cause by virtue of the said notice as to why the amount of Rs. 35,00,000/- deposited voluntarily during investigation should not be appropriated against the aforesaid demand. It is, therefore, the case of Mr. Satish Kumar that the said sum of Rs. 35,00,000/- is not available to the petitioner for the purpose of deposit of the differential duty in respect of the goods for which he is seeking provisional release.

Reasoning of judgment:- Theyare unable to agree with the submissions made by Mr. Satish Kumar. It is abundantly clear that the show cause notice has been issued to the petitioner inter alia requiring the petitioner to show cause as to why the amount of Rs. 35,00,000/- deposited voluntarily during investigation should not be appropriated against the demand raised in the said show cause notice. This means that till there is an adjudication consequent upon the said show cause notice, the said sum of Rs. 35,00,000/- cannot be appropriated against the said demand. In other words, the said sum of Rs. 35,00,000/- is available to the petitioner for adjustment towards the differential duty which has been required to be deposited by virtue of the provisional release order dated 29-4-2015.
Consequently, the said sum of Rs. 35,00,000/-, which was voluntarily deposited by the petitioner, ought to be adjusted against the estimated differential duty of Rs. 33,87,526/-, which has been indicated in the provisional release order. The respondents are directed to release the said goods within ten days subject to the other conditions being complied with.
The writ petition stands allowed to the aforesaid extent.

Decision:-Petition allowed.

Comment:- The analogy of the case is that any goods, documents or things seized under section 110, may, pending the order of the adjudicating officer, be released to the owner on taking a bond from him in the proper form with such security and conditions as the Commissioner of Customs may require. At the time of investigation 35 lakhs is deposited by petitioner. Amount deposited during investigations available with petitioner till it is actually appropriated in adjudication. Therefore the amount available to the petitioner can be adjusted towards the differential duty. The respondents are directed to release the goods within ten days subject to the other conditions being complied with.

Prepared by:- Monika Tak

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PJ/CASE LAW/2015-16/2959

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