ORDER: This writ petition has been filed by the petitioner praying to issue a writ of mandamus to direct the respondents to pay compensation to the petitioner at the rate of assessable value of the good sold at Rs.2,32,255 together with profit margin at the rate of 20% of the value of the goods sold and interest at the rate of 24% from the date of warehousing the goods on 19.2.2002. 2. From the affidavit filed in support of the above writ petition, the petitioner would submit that the petitioner imported 20,000 pieces of Glass shell with fluorescent powder welding and 20,000 pieces of PCB plus cap plus base with wires from China; that with the permission of the customs Department, the imported goods were warehoused/de-stuffed in the warehouse of the first respondent on 19.2.2002 and 21.2.2002; that the petitioner filed a bill of entry on 6.3.2002 bearing No.382146 to clear 20,000 pieces of Glass Shell; that the petitioner declared the assessable value of the goods at Rs.1,14,755 and liable to pay the customs Duty of Rs.65,217.70; that the petitioner is entitled for clearance of the goods for home consumption on payment of customs duty, but the third and fourth respondents refused to allow clearance on the grounds that the Glass Shells may be compact Fluorescent lamps; that Compact Fluorescent lamps are liable for anti-dumping duty; that the third respondent in his letter dated 4.6.1992 sent the samples to the SQTC Directorate, New Delhi seeking their opinion, whether the same can be considered as compact Fluorescent lamps or not. As there was no reply, the third respondent sent reminder to the SQTC Directorate on 29.10.2002; that on 13.5.2003, the third respondent sent the samples to the Cen- tral Electrical Testing Laboratory, Kakkalur, seeking their opinion. On 27.5.2003, the fourth respondent sent the samples to the Electrical Regional Test Laboratory, New Delhi, seeking their opinion. On 29.5.2003, the fourth respondent sent samples to the SQTC Directorate, New Delhi seeking their opinion. Even though more than a year passed, the third and fourth respondents could not come to any conclusion. The petitioner requested the third and fourth respondent number of times to permit clearance of the goods but the petitioner’s request were turned down and the ground that investigation is not over. Even though more than a year passed, the third and fourth respondents could not come to any conclusion. The petitioner requested the third and fourth respondent number of times to permit clearance of the goods but the petitioner’s request were turned down and the ground that investigation is not over. As the third and fourth respondents refused to clear the first consignment covered under bill of entry No.382146 dated 6.3.2002, the petitioner did not file the bill of entry for second consignment of PCB plus caps. 3. The further case of the petitioner is that on 2.6.2003 his agent visited the godown of the first respondent to inspect the goods and he was surprised to note that the goods were not available. The first respondent informed the agent of the petitioner that the goods were sold in auction. The petitioner sent legal notice on 25.6.2003 to the respondents 1, 2 and 4 stating that the sale is illegal as no notice was issued to the petitioner. The respondents were asked to pay the value of the goods Rs.2,32,255 plus 20% profit margin plus interest at the rate of 24% from the date of warehousing that is from 19.2.2002. The first respondent sent reply on 1.7.2003 through their advocates stating that the first respondent sold the goods by public auction in the month of March, 2003 and the same has been cleared to the highest bidder in the month of May, 2003; that the auction was conducted in the presence of the officers of the Customs and the bid was confirmed, the auction was held with prior approval from the customs and intimation to the petitioner. The petitioner has not received any letter from the first respondent regarding the sale of goods; that the petitioner could not clear the goods because the third and fourth respondents were carrying out investigation to find out whether the imported goods are compact Fluorescent lamps or not; that in these circumstances, it is not known to the petitioner how the Customs Department has given permission to the first respondent to conduct the sale; that the said sale is illegal and the respondents are liable to pay compensation to the petitioner. With the above averments the petitioner seeks for the relief extracted superior. 4. With the above averments the petitioner seeks for the relief extracted superior. 4. The first respondent filed his counter-affidavit not only denying all the allegations made in the affidavit filed in support of the writ petition but would submit that the petitioner imported consignments of 20,000 pieces of Glass Shell with Fluorescent powder welding and 20000 pieces of PCB Plus Cap Plus base with wires from China; that the Freight Systems (I) Private Limited, Chennai who is the Steamer Agent de-stuffed the goods from the containers on 19.2.2002 and 21.2.2002 and delivered the goods to the first respondent for warehousing, pending determination of the appropriate duty by the Customs for the imported goods; that the goods were lying with this respondent for more than 30 days and hence, this respondent sent separate notice to the petitioner on 22.1.2003 for taking delivery of the cargo within 15 days of the issue of notice, failing which, the cargo would be put to auction without any further intimation; that notices were dispatched to the petitioner on 25.1.2003 by Registered Post; that since there was no response from the petitioner, the cargoes were put up for auction in Lot NO.44/2003 and the goods were sold for Rs.3,01,000 in the public auction held on 26.3.2003; the goods were sold in auction after approval by the Customs, that after apportioning the amount towards auction expenses, custom’s duty and warehousing charges, the petitioner is entitled to only the balance of Rs.1,67,632; that the petitioner having failed to clear the goods after paying the charges, the petitioner has come forward with the above writ petition with false and hence he prays for the dismissal of the writ petition. 5. 5. The respondents 2 to 4 filed counter-affidavit not only denying the averments but would submit that the petitioner having kept quite without clearing the goods is not entitled to object to the auctioning of the goods and notice was issued to the petitioner intimating about the auction sale; that in the letter dated 24.4.2002 sent by the third respondent, the petitioner was informed that pending further verification the goods may be cleared on furnishing of provisional duty Bond with Bank Guarantee for the difference of duty if anti-dumpting duty in terms of Notification 128-Cum dated 21.12.2001 is held liable; that it was informed that in the alternative the petitioner may ask for storing of goods in a public ware house on deposit of admitted duty; that the petitioner was further put on notice that it may take some time to get technical opinion and in case of damages, the petitioner alone will be responsible; that inspite of that the petitioner had not exercised the options offered to it; the failure on the part of the petitioner to send reply to the notice sent by the first respondent tantamount to acceptance of the stand taken by the first respondent and it would be presumed that the petitioner/importer was not willing to clear the cargo; that since the auction was conducted under notice to the petitioner by giving sufficient time, the auction cannot be said to be illegal and the respondents are not liable to pay any profit margin or interest as claimed by the petitioner and with the above averments, the respondents 2 to 4 pray for the dismissal of the above writ petition. 6. Heard Both. 7. 6. Heard Both. 7. During arguments, learned counsel appearing on behalf of the petitioner would not only reiterate the averments in the affidavit filed in support of the writ petition but would also submit that the public auction sale said to have been conducted by the first respondent during the month of March, 2003 is illegal and the learned counsel quoted Sec.48 of the Customs Act, 1962 which reads as follows: “If any goods brought into India from a place outside India are not cleared for home consumption or warehoused or transhipped within thirty days from the date of unloading thereof at a Customs Station or within such further time the proper officer may allow or if the title to any imported goods is relinquished, such goods may after notice to the importer and with the permission of the proper officer be sold by the person having the custody thereof.” The above mentioned Section stipulates two conditions before a valid sale; (i) notice is to be given to the importer;. (ii) permission should be obtained from the proper officer; In the case on hand learned counsel appearing on behalf of the petitioner would submit that the petitioner did not receive any notice from the first respondent and the contention of the first respondent in the counter-affidavit that the notice dated 22.1.2003 was dispatched to the petitioner on 25.1.2003 is an utter lie; further the proper officer would not give the permission to sell the goods, because the goods were handed over to the first respondent by the Customs Department for the purpose of carrying out investigation; that if the proper officer has given permission to the first respondent, then that permission is not proper and the same is against the provisions of Sec.48 of the Customs Act, 1962; that the goods were handed over to the first respondent by the Customs Department on 19.2.2002 and 21.2.2002 and filed the bill of entry on 6.3.2002 to clear the goods for home consumption but the respondents 3 and 4 refused clearance of goods as they wanted to carry out investigation; the learned counsel further would submit that as the goods were handed over to the first respondent by the Customs Department, the petitioner is not liable to pay any warehouse rent etc.; further, the first respondent has not accounted for the sale proceed and he has misappropriated the entire amount of sale proceed; that as the sale is not proper and not legal, the respondents are liable to pay compensation to the petitioner and the learned counsel would ultimately pray for the prayer stated supra. 8. 8. On the other hand, the learned counsel appearing on behalf of the respondents would not only reiterate the averments in their counter-affidavits filed by them would also submit that the first respondent issued notice to the petitioner but the petitioner did not respond to it and the learned counsel would rely on the decisions reported in M.Janakiram Naidu v. T.R. Arumugha Mudaliar, (1970)2 M.L.J. 535 and the relevant portion is extracted below: “...The mere statement on oath by the petitioner that notice had not been received by him will not rebut the presumption contained in Sec. 114 of the Evidence Act and the deeming provision in Sec.27 of the General Clauses Act.” Yet another relevant portion in the judgment second cited is as follows: “Notice was sent to the respondents as early as 25.7.1971 but neither the unserved notice nor the acknowledgment cards have so far been received from the respondents. So notice must be deemed to have been served on them.” It is not only the duty and responsibility on the part of the party, that they registered a material but also to see whether it is served or not. Learned counsel appearing on behalf of the first respondent would bring to the notice of this Court, the register maintained by the first respondent for despatching the letters. The entries are shown to the effect that under serial Nos.3107 and 3108, communications have been despatched to M/s.Rita Enterprises, Ahmedabad, on 25.1.2003. 9. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for the petitioner and the respondents as well, the case that brought forth in the above writ petition and extracted superior by the petitioner and the counter-case as put up in the counter affidavit and the arguments of the respondents, on the facts and circumstances of the case and in the warranting procedures established by law it could be condensed for proper consideration and decision whether on the part of the respondents, two mandatory conditions that are to be observed has been complied with; (i) whether proper notice has been given to the improve? and (ii) whether the permission has been obtained from the proper officer prior to the items imported were sold in auction as they are warranted under Sec.48 of the Customs Act? 10. and (ii) whether the permission has been obtained from the proper officer prior to the items imported were sold in auction as they are warranted under Sec.48 of the Customs Act? 10. So far as the first compliance, that is the notice to the importer is concerned, on the part of the respondents a xerox copy of the postal despatch register maintained by the first respondent, Central Ware Housing Corporation, covering the period 23.11.2002 to 28.2.2003 would be produced along with the copies of two notices both dated 22.1.2003 for both the items imported (mentioned superior) from which, in serial numbers 317 and 318 entries have been effected by the office of the first respondent to the effect that by registered post, the notices mentioned have been sent. But the respondents are not able to cause production of any document or proof muchless to the effect that the notices sent according to their postal despatch register reached the party concerned, that is, the petitioner herein. Without retaining such authenticated proof to show that such notices have been issued on the parties so as to prove that the warranting procedure in the matter of issuance of notice has been complied with and produced before this Court by the first respondent and therefore based on some entries effected in their register to the effect that they issued the notices, no conclusion could be arrived at muchless deciding that the notices required to be issued under Sec.48 of the Customs Act, 1962 has been complied with and therefore, it is a case in which the only conclusion that could be arrived at so far as this condition is concerned is that there was no notice prior to the auctioning of the goods. 11. Secondly, even for having obtained permission from the proper officer prior to resorting to the auction, absolutely no proof has been submitted and hence, needless to mention that it is a case in which both the mandatory requirements without which the auction could not be held, have not been complied with and therefore it is only desirable to allow the above writ petition as prayed for and hence the following order. In result, (i) the above writ petition succeeds and the same is allowed as prayed for; No costs. In result, (i) the above writ petition succeeds and the same is allowed as prayed for; No costs. (ii) The higher officials of the Central Warehousing and the Chief Commissioner of Customs will be at liberty to initiate such domestic proceedings against those who are responsible for compliance of such mandatory provisions of law and failed to comply with, so as to recover the part of the compensation amount paid to the petitioner from out of their salary or other emoluments.