Liability to pay duty and the duty payable must be established before any reference to duty in a decision, and the determination of security to be furnished by the petitioner should be in accordance with regulations and circulars.

This writ application can be disposed of at the court application stage.

2. A large quantity of 95.75 MT of betel nuts was seized from the writ petitioner by the respondent authorities, under Section 110(1) of the Customs Act 1962.

3. The allegation of the respondent authorities against the writ petitioner is that these goods are illegally imported into India.

4. The writ petitioner refutes this. According to her, these goods are indigenous and have not been imported.

5. Section 110A of the said Act provides that seized goods may be released to the importer provided he or she furnishes, inter alia, security, to the satisfaction of the Customs Officer.

6. In this writ application the writ petitioner challenges the decision of the Commissioner of Customs (Preventive) communicated by a letter dated 31st October, 2014 of an Assistant Commissioner of Customs (Annexure P-7, page 113). By this decision the 95.75 MT of betel nuts seized by the respondent authorities would be released provisionally subject to the petitioner fulfilling the following conditions:-

“(a) Payment of duty in accordance with the tariff value fixed by the Board (read with Section 15 of the Customs Act, 1962).

(b) Execution of bond with value fixed in accordance with tariff value.

(c) Furnishing of Bank Guarantee of 40% of the Bond value [as in (b) above].”

7. Mr. Chakraborty, learned Advocate for the petitioner, submits that his client cannot be asked to pay duty at this stage.

8. The law on the subject is this. After seizure under Section 110 of the said Act, the goods may be released to the owner, pending adjudication, upon taking a bond from him or her in a proper form. The authorities may ask for such security and fulfillment of conditions as they think fit and proper. Now, para 3.2 (Part 1) of Chapter 17 of the Central Excise Manual Supplementary instructions, read with a circular dated 2nd January, 2003 which is 686/2/2003-CX [P-8 page 114 of the petition] inter alia, provide that the goods may be released on 25% security. This simply means that the goods may be released upon obtaining security for 25% of their value.

9. In this case, there is a dispute whether the goods are indigenous or imported. If the department succeeds, they will be entitled to realise the duty together with the redemption fine, penalty and so on. If the writ petitioner wins, she will not be liable to pay any duty or any other sum.

10. Therefore, at this stage the reference in the letter dated 31st October, 2014, to duty is not in order, in my opinion, because the liability to pay duty and the duty payable are not established as of now.

11. It would be better for the respondent authorities to take security from the writ petitioner in accordance with the above regulations, read with the said circular. I make it abundantly clear that the department will be free to determine the security to be furnished by the petitioner to cover duty redemption fine etc. but the same should not exceed 25% of the value of the goods as mentioned in the above regulation and circular. The entire amount may be secured by the petitioner by a bank guarantee. A bond has also to be furnished in accordance with the above regulations.

12. Hence, I dispose of this writ application by directing the respondent authorities to determine the security to be furnished by the writ petitioner in terms of this order and the above regulation and circular by 12th December 2014. Upon the petitioner furnishing a bank guarantee in favour of the appropriate Commissioner of Customs to that effect together with the required bond and other incidental documents if so required, the respondent authorities will release the goods to the petitioner within three working days thereafter.

13. Certified photocopy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.