JUDGMENT T.S. SIVAGNANAM, J. 1. The petitioner has filed this Writ Petition for issuance of a Writ of Mandamus, to direct the respondents to permit clearance of the goods covered in Bill of Entry No. 6022232, dated 05.07.2014, which was assessed by the proper officer of customs and the duty thereon was paid by the petitioner and out of charge order was issued under Section 47 of the Customs Act. 2. The petitioner filed the said Bill of Entry for clearance of 52.78MTS of goods declared as Defective MS CR Sheet Cuttings and claimed the benefit of Notification No. 46 of 2011 Customs. Under the said Notification, the basic customs duty is NIL. Based on intelligence, the consignment was detained after Out of Charge order was given on 09.07.2014. The respondent would state that during the course of investigation, the petitioner did not submit the copy of the Asian India Free Trade Agreement (AIFTA) Certificate of Origin for any of their consignments and as per the notification, four copies of the certificate have to be furnished of which the Triplicate copy could be retained by the petitioner. The petitioner alleged that for each consignment, they have received only one original AIFTA certificate of origin, which was submitted at the time of examination and the petitioner did not receive the triplicate copy of the AIFTA certificate of origin and was not in possession of even the photostat copy of the same. The department further alleged that the import dockets of the petitioner earlier consignment also revealed that AIFTA certificates of origin were not produced in most of the dockets and therefore, the investigation is proceeding and a conclusion is yet to be reached. It is the further case of the department that the Bill of Lading submitted by the petitioner for the subject consignment, revealed that the description of the goods was Electrolytic galvanized sheets and the petitioner had declared the goods as Defective M.S.C.R., Sheet Cuttings in the Bill of Entry, dated 05.07.2014. The imported goods vide in the said Bill of Entry were examined on 20.08.2014 in the presence of the petitioner and the testing agency and samples were drawn for testing. The testing agency by their letter dated 03.09.2014 stated that the description of the goods in the said consignment was Electro Galvanized Low Carbon CR Steel Sheets. The imported goods vide in the said Bill of Entry were examined on 20.08.2014 in the presence of the petitioner and the testing agency and samples were drawn for testing. The testing agency by their letter dated 03.09.2014 stated that the description of the goods in the said consignment was Electro Galvanized Low Carbon CR Steel Sheets. Therefore, the department alleged that the petitioner had not only mis-declared the description of the goods, but also submitted in-eligible AIFTA Certificate of Origin and they claimed benefit of Notification No. 46 of 2011 customs in an erroneous manner. Further, it is stated that as of now, the petitioner has claimed the benefit of the said notification for 44 consignments including the subject consignment and the duty foregone on the subject consignment is Rs. 2,08,358/-. On the above background, the petitioner has approached this Court by way of this Writ Petition seeking for permission to effect clearance of the goods, which have been now detained. 3. The learned counsel appearing for the petitioner after reiterating the factual averments in the affidavit filed in support of the Writ Petition submitted that the respondents ought to have taken into consideration that the goods imported are not prohibited goods and there cannot be any impediment for the respondents to proceed with the assessment and clearance of goods. Further, it is submitted that the respondents atleast should have cleared the goods on provisional basis in terms of Section 110A of the Act by following the circular issued by the Central Board of Excise and Customs in circular No. 42/01-Cus, dated 31.07.2001. Further, the learned counsel would submit that the petitioner will cooperate with the adjudication proceedings that may be initiated by the department and the goods may be permitted to be cleared and the petitioner is ready and willing to deposit the portion of the duty alleged to have been foregone on the subject consignment, which has been stated to be Rs. 2,08,358/- by the respondent in their counter affidavit and the conditional order may be passed by this Court. 4. The learned Standing counsel appearing for the respondents elaborately referred to the factual matrix as contained in the counter affidavit filed on behalf of the respondents and it is submitted that the present consignment is not the only consignment imported by the respondent. 4. The learned Standing counsel appearing for the respondents elaborately referred to the factual matrix as contained in the counter affidavit filed on behalf of the respondents and it is submitted that the present consignment is not the only consignment imported by the respondent. There are 44 consignments which were imported by the petitioner availing the benefit of Notification No. 46 of 2011 and the duty foregone on account of the same was Rs. 81,75,371/-. Further, it is submitted that during the course of investigation, the petitioner did not submit the copy of the AIFTA certificate of origin (Triplicate Copy – Petitioner's copy) for any of their consignments. As per Notification No. 46 of 2011-Customs, there are four copies of the AIFTA certificate, out of which the Triplicate copy is petitioner's copy and they had stated that for each consignment, the petitioner had received only one original AIFTA certificate of origin and also stated that the petitioner has submitted the same at the time of examination and that the petitioner did not receive the Triplicate (Petitioner's) copy of the AIFTA certificate of origin and also stated that the petitioner was not having even a photocopy of the said AIFTA certificates of origin. The petitioner also stated that the petitioner has received the Original copy of the AIFTA certificate of origin through a broker and not directly from the supplier. Thus, the petitioner had not submitted to the investigation, the petitioner's copy of such AIFTA certificates which are expected to be with them. Further, it is submitted that the investigation is in progress and at this stage, if the goods are to be released, it would hamper the investigation. Further, it is submitted that the Bill of Lading submitted by the petitioner for the subject consignment, revealed that the description of the goods was Electrolytic galvanized sheets while the petitioner had mis-declared the goods as Defective M.S.C.R. Sheet Cuttings in the Bill of Entry No. 6022232 05.07.2014. The goods imported vide said bill of entry were examined on 20.08.2014 in the presence of petitioner and testing agency M/s. Bureau Veritas Consumer Products (I) Pvt. Ltd. Chennai and representative samples were drawn and taken for testing by the said agency. The goods imported vide said bill of entry were examined on 20.08.2014 in the presence of petitioner and testing agency M/s. Bureau Veritas Consumer Products (I) Pvt. Ltd. Chennai and representative samples were drawn and taken for testing by the said agency. M/s. Bureau Veritas Consumer Products (I) Pvt. Ltd. Chennai vide a report No. 7814-245-0111 to 0114, dated 03.09.2014 had stated that the description of the goods in the said consignment was Electro Galvanized Low Carbon CR Steel Sheets. On the above grounds, the learned counsel submitted that the release of the goods at this stage would be detrimental to the investigation and to the duties of revenue collection by the Customs Department. Therefore, it is submitted that in the investigation sofar conducted revealed that it is the petitioner who has mis-declared the goods and illegally claimed investigation exemption under Notification 46 of 2011. Therefore, the learned counsel prayed for rejecting the relief sought for by the petitioner for release of the goods. 5. The short issue which falls for consideration is as to whether the goods in question have to be retained by the respondents or as to whether the respondents should be directed to provisionally release the goods pending further action by them. The description of goods in the Bill of Lading, was given as Electro Galvanized Sheets. While the petitioner in the Bill of Entry declared the goods as Defective M.S.C.R., Sheet Cuttings. On samples being drawn and examined by the Testing Agency, it was certified that the consignment was Electro Galvanized Low Carbon CR Steel Sheets. From the above facts, it prima facie appears to be a case of mis-declaration. However, the case of the petitioner is that even going by the certificate issued by the testing agency, dated 03.09.2014, the consignment is Electro Galvanized Low Carbon CR Steel Sheets, which effect means 'defective M.S.C.R., Sheet Cuttings'. Therefore, it is submitted that there is no mis-declaration muchless wilful mis-declaration of the description of the goods. Further contention is that the goods, which were imported are not prohibited items and no licence is required for importing the same. In the above factual background, it is to be noted that the petitioner did not voluntarily come forward with the correct description of the goods, it is only based on intelligence when the consignment was inspected and samples were drawn, the above aspect has come to light. In the above factual background, it is to be noted that the petitioner did not voluntarily come forward with the correct description of the goods, it is only based on intelligence when the consignment was inspected and samples were drawn, the above aspect has come to light. After the completion of the investigation and issuance of show cause notice, the petitioner can agitate his contentions stating that the consignment imported qualifies for the benefit of notification No. 46 of 2011 customs, dated 01.06.2011. Therefore, at this stage of the matter, such issue cannot be decided. However, the Customs Act provides for provision release of goods under Section 110-A, which provides for provisional release of goods, documents and things seized pending adjudication. The said provisions states that any goods, documents or things seized under Section 110A may pending the order of adjudicating Officer, be release to the owner on taking a bond from him in the proper form with such security and conditions, as the Commissioner may require. The power under Section 110-A of the Act has not been exercised by the respondents, though the petitioner made a request in writing by representation dated 18.08.2014, which necessitated the petitioner to approach this Court. 6. The relevant consideration while exercising power under Section 110-A would be to ensure that whether if the goods, which have been seized are provisionally released, would it any manner hamper the investigation/adjudication. Whether it would affect the interest of the revenue for recovering the duty and penalty which may be imposed on conclusion of the adjudication proceedings. The respondents in the instant case would state that apart from the present consignment, the petitioner has already imported 44 consignments and for all those consignments, he has availed the benefit of notification No. 46 of 2011, for which he is not entitled to. However, with regard to the past imports, it is for the department to take proper action, as they deem fit and proper. Sofar as subject import, in the counter affidavit, the respondents have stated that the duty foregone is Rs. 2,08,358/-. This appears to have been calculated on the ground that the petitioner is not entitled for the benefit of Notification No. 46 of 2011 Customs. Sofar as subject import, in the counter affidavit, the respondents have stated that the duty foregone is Rs. 2,08,358/-. This appears to have been calculated on the ground that the petitioner is not entitled for the benefit of Notification No. 46 of 2011 Customs. Therefore, while preserving the right of the department to proceed with the investigation not only with subject consignment, but as well as the prior imports, this Court is of the view that the petitioner should be permitted to remove the goods by way of provisionally release pending investigation/issuance of show cause notice and adjudication subject to stringent conditions. This Court is inclined to exercise such discretion in the light of the fact that the duty, which is alleged to have been foregone on the subject import is Rs. 2,08,358/- as per the counter affidavit and the goods in question are not prohibited items nor any licence is required for import of the said items. 7. In the result, the Writ Petition is disposed of, by directing the respondents to provisionally release the goods covered Bill of Entry No. 6022232, dated 05.07.2014, under Section 110-A of the Customs Act, subject to the condition that the petitioner deposits a sum of Rs. 2,08,358/- and also furnishes a bond to the satisfaction of the respondents as regards any fine or penalty that may be imposed as in the dissuasion of the respondent. On the petitioner making the above remittance and executing the bond to the satisfaction of the respondents, the goods shall be forthwith released. The petitioner is directed to participate in the investigation/adjudication, without adopting any dilatory tactics and the department is entitled to proceed further in accordance with law. It is made clear that the release of the goods covered in the subject consignment would not in any manner hamper or stand in the way of the respondents in investigating the matter, which is said to be in progress not only for the subject consignment but as well as for 44 earlier imports. No costs. Consequently, connected miscellaneous petition is closed.