Page 119 - ELT_15th August 2020_Vol 373_Part 4

2020 ]P. PANDITHURAI v. JOINT COMMISSIONER OF CUSTOMS (ADJUDICATION), TRICHY 453

wherein, a Division Bench of this Court had granted necessary discretion to the
adjudicating authority to deny provisional release of seized goods.
7. It is also pointed out by the Learned Counsel pursuant to the said
judgment, a Circular No. 35/2017-Customs, dated 16-8-2017 has been issued,
wherein, it had been stated that the observation of Madras High Court in Malabar
Diamond Gallery Private Limited (referred supra) should be kept in mind while
deciding to grant or to deny provisional release of seized goods. It is also stated
that if a decision is taken to release the goods, then necessary bond should be
taken and the importer should pay the duty, fine and or penalty as may be ad-
judged by the adjudicating authority subject to appellate provisions under the
Act. It was therefore stated that the writ petition is premature, since the adjudi-
cating authority has not passed any orders.
8. I have carefully considered arguments advanced.
9. Admittedly, the petitioner herein was found in possession of three
unfinished gold chains weighting 199.5 grams while coming from Singapore at
Trichy airport on 22-10-2019. The petitioner has given his explanation that he had
brought the same for the purpose of his sister’s marriage, which was scheduled
be held in the month of February, 2020. The goods have been seized. The peti-
tioner had sent a representation claiming provisional release under Section
110(A) of the Customs Act, 1962. Under Section 110(A) of the Customs Act, 1962,
the goods which were seized can be released provisionally provided a bond is
executed by the person, from whom the goods were seized. It must however be
kept in mind that penalty has to be decided during the adjudication process.
During the adjudication process, the adjudicating authority has to take a further
decision whether to provisionally release the seized goods or not.
10. The Learned Counsel for the petitioner stated that the adjudication
process under Section 125 of the Customs Act, 1962 and Section 110(A) of the
Customs Act and independent of the adjudication process and since it has been
specifically indicated in the said statute, the petitioner can claim provisional re-
lease of goods on providing necessary bond on payment of duty and penalty.
The penalty can be decided only during the adjudication process.
11. The Circular No. 35/2017-Customs, dated 16-8-2017 had been is-
sued pursuant to the observations made by a Division Bench of this Court in
Malabar Diamond Gallery Private Limited (referred supra). The Division Bench in
that case, had given sufficient discretion to the adjudicating authority to even
deny provisional release of the goods under Section 110(A) of the Customs Act,
1962. When such discretion is vested with the authority, such discretion should
be respected by all other authorities including by this Court.
12. The adjudicating authorities should be permitted to exercise their
discretion in manner known to law. While exercising their discretion, they may
also examine the statements made by the petitioner. Naturally, they would have
to provide an opportunity to the petitioner of being heard. I am of the firm opin-
ion that when the adjudicating authority is empowered even to reject provisional
release of goods, unless such orders are passed by the adjudicating authority,
this Court should not interfere with such process. Both the Learned Counsels
have not brought to the notice either to a Learned Single Judge of this Court or
the judgment of the Division Bench in W.A. No. 377 of 2016 [Malabar Diamond
Gallery Private Limited (referred supra)]. A Learned Single Judge of this Court had
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