The accountability of custom officers against abuse of power by detaining goods for an indefinite period and the requirement to promptly verify goods and assess and recover duty.

Adarsh Kumar Goel, J.

1. This order will dispose of CWP Nos.5248 and 5254 of 2010 as both the petitions involve identical issue of validity of detention of goods by the custom authorities.

2. In CWP No. 5248 of 2010, case of the petitioner is that it imported material in question i.e. Processed Distillate Oil in January-February 2010 and filed Bill of Entry under section 46 of the Customs Act, 1962 (for short, the Act) The petitioner sought clearance of the goods for home consumption on payment of import duty. The officers of the department physically verified the goods and took samples for the purpose of making assessment of duty under section 17 of the Act. There was also correspondence between the petitioner and the department. Thereafter, the goods were seized vide Panchnamas Annexures P.6 to P.8, P.10 and P.ll between 12.3.2010 to 19.3.2010.

3. The petitioner sought release of goods pointing out that examination of goods had already taken place and there was no justification for seizure of the goods. It was also pointed out that detention of goods was resulting in demurrage charges. Even Deputy Commission, Customs wrote to the Additional Director, DRI vide letter dated 18.3.2010, Annexure P.11 that samples having already been taken, the party was suffering heavy demurrage on account of non clearance of consignment and, therefore, the goods may be released, unless required for examination or re-examination. It was also mentioned that bill of entry had already been assessed provisionally by the proper officer. Still, the goods were not released. Accordingly, this petition was filed in this Court on 22.3.2010 stating that the goods were being illegally detained. Reliance was also placed on instructions Annexure P.12 dated 22.8.2006 to the effect that first examination of goods should take place in 48 hours and assessment should be done within 24 hours thereafter. If it was necessary to detain the goods, the importer must be intimated so that he may shift the goods to a bonded warehouse under section 49 of the Act. Goods may be provisionally released and decision to release goods should be taken within five days after the presentation of bill of entry. Exceptions were of prohibited goods or fraudulent practices.

4. Facts in CWP No.5254 of 2010 are identical.

5. In the reply filed on behalf of the Directorate of Revenue Intelligence, stand taken is that the goods had been detained by the DRI on 23.2.2010 and the importer was informed that the goods could be kept in bonded warehouse under section 49 of the Act.

6. We have heard learned counsel for the parties and perused the record.

7. Learned counsel for the petitioner submitted that the goods are being detained for the last about three months and it was only on April 7, 2010 that counsel for the respondents made a statement that the goods could be shifted to the godown of the petitioner under the seal of the respondents. Mere shifting of goods to the godown of the petitioner was no relief as the goods could not be dealt with as the petitioner may like to. The petitioner was, thus, suffering loss. Action of the respondents was without any valid justification. The said action amounted to seizure without following the statutory safeguards. It was submitted that though, power of seizure may be exercised for advancing the object of law, the same could not be allowed to be misused without there being any prima-facie case and without following the prescribed procedure. The undervaluation could be taken care of by assessment or provisional assessment and unless the goods are prohibited goods, the power of seizure could not be exercised so as to deprive the importer of use of goods for a long time. It is not the case of the respondents that the goods are prohibited goods. As per letter dated 17.4.2010, a copy of which was produced at the time of hearing, only allegation of the DRI was that dispute was about classification of goods. Reliance has been placed on judgment of this