Point of Law: Order of Detention and seizure quashed - Absence of any proper opportunity to petitioner also, the civil liabilities of petitioner company demanding the huge amount of custom duty would be impermissible.

JUDGMENT :

(MS. JUSTICE SONIA GOKANI)

1. This is a petition preferred by the companies in the matter relating to the Customs Act, 1962 ('the Act' for short) and the Customs Tariff Act seeking to quash and set aside the detention and seizure by way of a writ jurisdiction.

2. This Court (Coram: Mr.Vikram Nath and Mr. J.B.Pardiwala, CJ.,J.) at the time of issuance of notice passed the following order on 07.09.2020:

“1. By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for the following reliefs;

“(A) YOUR LORDSHIPS may be pleased to issue a writ of Certiorari or writ n the nature of certiorari quashing and setting aside the detention and seizure dated 29.07.2020 (AnnexureH Colly), dated 03.08.2020 (AnnexureL & M) & 11.08.2020 (AnnexureW Colly);

(B) In addition to and in alternate to relief (A) above, Your Lordships may be pleased to direct the Respondents their servants and agent to release the goods provisionally, on such terms and conditions that this Hon’ble Court deems proper;

(C) During the pendency and final disposal of the present petition, Your Lordships may be pleased to stay the implementation of the Detention/ Seizure dated 29.07.2020 (AnnexureH Colly), 03.08.2020 (AnnexureL & M) & 11.08.2020 (AnnexureW Colly);

(D) This Hon’ble Court may be pleased to release the goods under detention and Seizure pending hearing and final disposal of this petition on such condition as are deemed proper;

(E) An exparte adinterim relief in terms of Para 8(C ) & 8(D) above may kindly be granted on such terms and conditions deemed fit by this Hon’ble Court.

(F) Any other further relief as may be deemed fit in the facts and circumstances of the case may also pleased be granted.”

2. The writ applicants are Private Limited Companies and are engaged in the business of recycling/dismantling imported old unserviceable electric motors.

In fact, the writ applicant No.1 is the main Company and the writ applicant No.2 is its sister concern. Prima facie, it appears from the materials on record that an extensive search was carried out by the officials of the DRI at the warehouse/factory premises of M/s. CMR Chiho Industries India Pvt. Ltd., situated at the Survey No.995 (Old Survey No.454/3), Village Balasa Taluka: Kadi, District: Mehsana on 28/29.07.2020. It came to the notice of the respondents that M/s. CMR Chiho Recycling Technologies Pvt. Ltd (the writ applicant No.2) also operates from the same premises and the main business of these companies of the same group is the segregation of copper, aluminum and iron/steel scrap from the imported motor scrap from different types of motors, i.e, large motors, medium motors, small motors etc. ]

3. To put in nutshell, the case of the Department against the writ applicants is that the goods, i.e, scraps in different forms seized from the premises were found to be imported without payment of appropriate customs duty by wrongfully availing the benefit of the notification.

4. The principal allegation levelled by the Department against the writ applicants is that M/s. CMR Chiho Recycling Technologies Pvt. Ltd. filed the Bills of Entry at the Thar Dry Port, ICD Customs, Sanand falling under the jurisdiction of the Commissioner of Customs, Ahmedabad by declaring the description of their product as “discarded and nonserviceable semibroken/ broken motor” by mentioning CTH 7204 49 00 under the Other Ferrous Waste and scrap.

5. The rawmaterials and finished goods lying in the factory were seized under four different Seizure Memos dated 29th July, 2020 and the seized goods were handed over to the Operation Manager under the Panchnama dated 29th July, 2020. It appears that the respondent No.4 directed the writ applicants vide letter dated 03.08.2020 to pay the total differential duty of Rs.2,51,13,372/Page and the interest as applicable on the ground that the benefit of the No