The Delhi High Court dismissed the writ petition as the issue on the provisional release of confiscated gold dore bars is factual and cannot be decided by the High Court. The Court upheld the observation of the Customs Excise and Service Tax Appellate Tribunal ( CESTAT ) that even if the goods are found to be restricted or prohibited at the time of import would still be subject to provisional release, would not amount to expression of opinion and is held to be restricted.
The Appellant challenged the impugned order passed by the Customs Excise and Service Tax Appellate Tribunal ( CESTAT ) whereby the Tribunal has permitted provisional release of 26 gold dore bars weighing 5 kg. plus, subject to specific conditions. The Tribunal ruled in favour of the assessee, Tasha Gold Pvt Ltd.
The Directorate of Revenue Intelligence ( DRI ) had issued Notification No.96/2008-Customs, providing for a Preferential Tariff Scheme for the import of gold from Lesser Developed Countries. A subsequent Notification No.50/2017-Customs was issued on 30.06.2017, imposing certain monetary conditions.
The respondent filed a Bill of Entry for the import of 27 gold dore bars from the Republic of Rwanda, which is one of the Lesser Developed Countries covered by the above-referred Notification No.96/2008Customs.
Though several conditions have to be satisfied, for the subject Bill of Entry, there are two relevant conditions, each of the gold dorebars must weigh a minimum of 5 kgs and have a purity of less than 95% for being imported under the said Notification.
On search at the premises of the respondent, 27 gold dore bars were confiscated. The DRI contended that the gold dore bars did not meet the requisite specification of weight as well as purity. The respondent disputed the said contention in respect of 26 gold dore bars. In respect of 1 gold dore bar, the gold dore bar admittedly weighed 4.24kgs. As per the respondent, there was no misdeclaration for the reason that the packaging of the said gold dore bar mentioned that it weighed 4.24 kg. With regard to the weight and purity of the remaining 26 gold dore bars, it was contended by the respondent that the gold dore bars weighed more than 5 kg and had a purity of less than 95%.
The Respondent had applied for a provisional release of the gold dore bars, however, the Principal Commissioner of Customs rejected the request for provisional release leading to the Respondent approaching the Tribunal.
By the impugned order, the Tribunal has considered the test report as well as the percentage of margin of error and thereafter directed the provisional release of 26 gold dore bars weighing 5 kgs. plus.
The counsel for the Appellant submitted that the Tribunal has erred in holding that even if the goods are found to be restricted or prohibited at the time of import, they would still be subject to provisional release.
It was held that observation of the Tribunal that even if the goods are found to be restricted or prohibited at the time of import would still be subject to provisional release, would not amount to expression of opinion and is held to be restricted.
A division bench comprising Justice Sanjeev Sachdeva and Justice Ravinder Dudeja found that the issue is purely factual and no substantial question of law arises for consideration. The Court dismissed the appeal.
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