M/S. Gulshan Traders vs. The Commissioner Of Customs (Preventive) And 2 Ors.

ORDER Date : 05-06-2018

Page No.# 2/4 Heard Mr. N. Dasgupta, learned counsel for the petitioner. Also heard Mr. B. Sarma, learned standing counsel, Central Excise Customs, appearing for the respondents. By this interlocutory application, the petitioner prays for an interim order directing provisional release of 19,500 Kgs of Betel Nuts seized by the Directorate of Revenue Intelligence, Siliguri Regional Unit, Siliguri vide Seizure Case No.06/CL/IMP/DRI/SLG/2017- 18 dated 27.10.2017. 19,500 Kgs of Betel Nuts packed in 250 bags were seized while they were transported by a truck bearing registration No.AP-16/TF-9279 under Section 110 of the Customs Act, 1962 (for short, “1962 Act”) for violation of provisions of Sections 3 & 4 of the Foreign Trade (Development & Regulation) Act, 1992 read with Section 11 of the 1962 Act. The value of the goods seized is stated to be ` 39,00,000/-. Challenging the said order, the accompanying writ petition being WP(C) No.1236/2018 was filed. No affidavit has been filed to this interlocutory application but an affidavit-in- opposition was filed by the respondents in the writ petition and Mr. Sarma has placed reliance on the averments made in the said affidavit-in-opposition while opposing this application. Mr. Dasgupta submits that the seized goods, namely, Betel Nuts, are required to be provisionally released pending adjudication by the adjudicating authority under Section 110A of the 1962 Act on taking a bond from the petitioner with such security and conditions as may be required. It is submitted by him that the Betel Nuts seized are of Indian origin and that Betel Nuts can be utilized for very many purposes and not necessarily for the purpose of consumption alone. He has submitted that the authorities themselves are not sure as to whether the seized goods are of foreign origin and it is indicated in the report of the Arecanut Research & Development Foundation (R), annexed to the affidavit-in-opposition of the respondents, that the seized goods resemble to the texture of Indonesian origin only, which is not conclusive. It is also not known what sample had been sent for such examination of Arecanut Research & Development Foundation (R). Accordingly, he submits that the seized Betel Nuts should be released in favour of the petitioner being the owner. Mr. Sarma has submitted that the Commissioner of Customs (Preventive), West Bengal, Kolkata, who is the adjudicating authority, had declined to release the goods provisionally and the same was communicated to the petitioner by a letter dated 21.02.2018 by the Assistant Commissioner of Customs, CCP, West Bengal, Siliguri. He has made the Page No.# 3/4 submission on the basis of a communication dated 01.06.2018 of the Deputy Director of Directorate of Revenue Intelligence, Siliguri Regional Unit. It is submitted by him that in his statement under Section 108 of the 1962 Act, the petitioner had categorically stated that he was dealing with hardware items only for the last 6(six) months or so and that the petitioner had provided GST invoice of his shop, namely, M/s Gulshan Traders to his brother-in-law, namely, Zakir Hussain Laskar, for transporting the consignment of Betel Nuts from Hailakandi to Mumbai and, therefore, though the petitioner was shown as a consignor, in view of such statement made under Section 108 of the 1962 Act, which is admissible in evidence, the petitioner on his own saying is not the owner of the goods and, therefore, Section 110A of the 1962 Act, which provides for provisional release of seized goods to the owner, is not applicable. A perusal of the report of the Arecanut Research & Development Foundation (R) goes to show that the Betel Nuts are highly infested with insects and moulds and not good for human consumption. The finding with regard to the Betel Nuts being not fit and good for human consumption is not disputed in the reply affidavit filed. It is also concluded that the sample of Betel Nuts provided by the Director to Revenue Intelligence to be white split Betel Nuts of Indonesian origin. Though Mr. Dasgupta has submitted that the petitioner had made statement before the Director, Revenue Intelligence stating that his brother-in-law was the person, who had transported the seized goods using the petitioner’s GST invoice, such statement was made under threat and coercion of DRI Officers. Mr. Sarma submits that in view of such statement of the petitioner, the petitioner was not arrested as he had disowned the goods. Zakir Hussain Laskar, despite issuance of repeated summons, did not appear, he submits. It is seen that the petitioner obtained the trade license on 31.10.2017 for hardware store, i.e. after the seizure was effected. However, the GST registration was prior in point of time and such GST registration was obtained for trade name, Gulshan Traders, for which ultimately trade licence was obtained. Considering the matter in its entirety, I am of the opinion that the petitioner, prima facie, being not the owner as per his own statement recorded under Section 108 of the 1962 Act, no direction is warranted for release of the goods provisionally to the petitioner. It Page No.# 4/4 is also made clear that the observations made in this order are only for the purposes of disposal of this interlocutory application. In view of the above, the interlocutory application stands dismissed. J U D G E M. Sharma Comparing Assistant