HC reduces bank guarantee for release of vessel seized by customs

A division bench of justices MS Karnik and Sandesh Patil said that while the customs had the discretion to impose conditions for the provisional release of seized goods, “such discretion has to be exercised reasonably”

Mumbai: Observing that the conditions imposed by the Additional Commissioner of Customs (export assessment) for the provisional release of a barge intercepted in June were “excessive and unreasonable”, the Bombay High Court last week reduced the bank guarantee sought by the customs from ₹6 crore to ₹50 lakh.

HC reduces bank guarantee for release of vessel seized by customs

The barge, MT Bay III, was intercepted by the customs on June 13 for allegedly illegally carrying 208 kilolitres (KL) of fuel.

A division bench of justices MS Karnik and Sandesh Patil said that while the customs had the discretion to impose conditions for the provisional release of seized goods, “such discretion has to be exercised reasonably”.

The court was hearing a petition filed by Richa Shipping Private Limited (RSPL), which had chartered MT Bay III. The company had challenged the September 9 order of the customs, imposing a bond of ₹12 crore, stated to be the value of the barge, and a bank guarantee of ₹6 crore for the vessel’s provisional release.

MT Bay III was seized by the customs at the Mumbai Port Authority during an investigation into alleged illegal export of fuel. According to the customs, approximately 208 KL of a blackish liquid, purportedly Very Low Sulphur Fuel Oil (VLSFO), was transferred from two tanks of the barge to Russian-flagged MV Angara, and an investigation was initiated.

On June 22, RSPL wrote to the customs seeking the provisional release of MT Bay III. The court was informed that MV Angara was released by the customs on July 1 on an e-bond of ₹16.12 crore and an e-bank guarantee of ₹30 lakh.

RSPL contended that the order of the customs did not disclose the basis or the methodology for determining the value of MT Bay III at ₹12 crore or that for fixing the bank guarantee at ₹6 crore. RSPL said that its insurance policy and valuation report of the barge had valued it at approximately ₹2.90 crore.

The customs argued that RSPL could not cite the example of the ₹30 lakh bank guarantee imposed on MV Angara as the Customs Act does not prescribe uniform security for every case. The quantum may vary depending on the facts, circumstances, nature of the alleged offence, among other relevant factors. They said that a certificate dated June 15 by an Insolvency and Bankruptcy Board of India-registered valuer stated that the realisable value of the barge was ₹12 crore.

The judges, however, said that the conditions in this case should have been similar to those imposed on MV Angara and reduced the bank guarantee amount.