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2004 DIGILAW 228 (PAT)

Jitendar Bothra v. Union Of India

2004-02-25

RADHA MOHAN PRASAD

body2004
Judgment 1. Heard learned counsel for the petitioner and Mr. Shahi, learned counsel appearing for Commissioner of Customs (P), Patna (Respondent no. 2) 2. In this writ petition, petitioner has sought for direction for release of his consignment i.e. 230 bags of betel-nut (Indian origin) seized by the custom officials of Patna Headquarters on 17.10.2001 and/or alternatively to direct the Respondents to put the seized consignment on auction sale forthwith. By amendment petition allowed vide order dated 5th February, 2004, the petitioner has sought for direction to refund the amount of Rs. 19,02,000/- as the value of the confiscated goods to the petitioner forthwith plus interest @ 12% or more from the date of unauthorised auction of the confiscated goods till the date of final payment besides seeking for adequate compensation for suffering and the financial loss sustained by him for more than 27 months by awarding heavy cost. 3. In short, the case of the petitioner is that his firm is a registered firm having W.S.T. and C.S.T. numbers mainly dealing in betel-nut, jute & general merchant items. On 13.10.2001 his firm booked a consignment from Falakata Jalpaiguri to Nokha Bikaner (Rajasthan) in favour of consignee M/s Bardhman Traders with all legal valid papers through one transport company, Assam Rajasthan Road services for carrying betel nuts which was being carried in a truck bearing registration No. NL-01A-4674. The said truck was seized by the custom officials of the Headquarters at Patna in the night of 17th October, 2001. Since the price value of the seized item was only Rs. 4,48,500/- a petition was moved before the Joint Commissioner, Customs as being the competent authority for release of the same on 18.10.2001. It is stated that the Transport Company also made an application before the learned Commissioner on 7.11.2001 for immediate release of the consignment, but of no avail. It is further stated that the seized goods as being perishable in nature the petitioner made an application on 15.1.2002 to the learned Commissioner requesting him that in case of delay in release of the goods the same may be put in auction to save from being completely ruined but the same also remained unheeded. Hence, the present writ petition was filed on 7.3.2002. 4. Hence, the present writ petition was filed on 7.3.2002. 4. From the amendment petition, it appears that during the pendency of the writ petition a show cause notice was served to the petitioner to show cause as to why the goods under seizure along with the truck should not be confiscated and why penalty under Section 112 of the Customs Act, 1962 should not be imposed on him. In response to the show cause the petitioner filed his reply in detail denying and disputing the allegations levelled against him before the Commissioner (Respondent no. 2), who, according to the petitioner, was the adjudicating authority. Respondent no. 2 vide his final adjudication no. 17/CC/ ADD/2002 dated 13.9.2002 directed for absolute confiscation of the seized betel- nut as well as the truck carrying the said consignment, and, further imposed penalty to the tune of Rs. 5,00,000/- against the petitioner and Rs. 3,00,000/- on Sri Manjeet Singh, owner of the Truck and Rs. 60.000/- against Sri Manan Singh, an employee of the petitioner. Being aggrieved by the said adjudication order, the petitioner and other two persons preferred three separate appeals before the Customs, Excise & Gold (Control) Appellate Tribunal, East Zonal Bench, Kolkata which were numbered as Appeal Nos. C-376-378/02. The said appeals were heard by the Tribunal comprising of judicial and technical members. The Tribunal vide its order dated 28.3.2003, contained in Annexure-3 to the amendment petition found no justification to uphold the order of the Commissioner of Customs confiscating the betel-nut by treating the same as contraband items, and, accordingly, set aside the order of confiscation, and, further directed that there was no justification for imposition of personal penalty either upon the owner of the betel-nut or upon two other owner or representative of the transporter, which were also set aside and allowed the appeals preferred by the three aggrieved persons. 5. Thereafter, the petitioner filed representation along with a copy of the order/judgment of the Tribunal before, the Commissioner (Respondent no. 2) for release of the goods, but, later learnt that the betel- nut have been sold in auction sale in a most hush-hush manner, giving a complete go by to all settled norms and rules, about which information was given by the Joint Commissioner, Customs (Respondent no. 3) vide letter dated 22.9.2003 (Annexure-6) to the learned counsel for the petitioner. 6. 3) vide letter dated 22.9.2003 (Annexure-6) to the learned counsel for the petitioner. 6. Learned counsel for the petitioner submitted that in view of the law settled in the case of Northern Plastics Ltd. vs. Collector of Customs and Central Excise, 1999 (113) E.L.T. 3 (SC) and Shilps Impex vs. Union of India, 2002 (140) E.L.T. 3 (SC) the petitioner is entitled to get back what he paid as price of the betel- nut in the facts and cicumstances of this case as he was not given any information/ notice moreso, because no permission from the learned Tribunal which was in session of the matter on filing, of the appeal by the petitioner and other two aggrieved persons has been taken. 7. In view of the law settled, on 5.2.2004 Mr. Shahi, learned counsel appearing for the Respondents sought for adjournment to take full instruction in the matter, and, accordingly, the matter was adjourned for listing in the next week. On 11.2.2004 again as a last indulgence, the matter was adjourned for listing in the next week on the prayer made by Mr. Shahi, learned counsel for the Respondents and later on 17.2.2004 for listing in the next week. However, today Mr. Shahi contended that Tax Case bearing Tax Case No. 03 of 2004 has been filed in this Court on 27.1.2004 seeking for reference on the question relating to the orders passed by the Tribunal, and, as such, according to him, during the pendency of Tax case it may not be appropriate to consider the claim of the petitioner for refund of the amount. Further, he contended that in any view of the matter at best the petitioner is entitled for refund of the value of the sale proceeds of the seized goods. 8. I am unable to appreciate the manner in which the Respondents have conducted themselves in the matter. The Tribunal passed the order on 28.3.2003, and, thereafter, no step was taken to assail the said decision of the Tribunal. It is only after ten months that the aforementioned Tax case has been filed on 27.1.2004, which is admittedly time barred and has not been even admitted so far. The Tribunal passed the order on 28.3.2003, and, thereafter, no step was taken to assail the said decision of the Tribunal. It is only after ten months that the aforementioned Tax case has been filed on 27.1.2004, which is admittedly time barred and has not been even admitted so far. However, despite ample opportunity granted by this Court to the respondent-Custom authorities to come with redressal of grievance of the petitioner in the light of the law settled, they have ventured to contest the matter only by placing reliance on the tax case filed by them on 27.1.2004 which is admittedly time barred and has not even been admitted so far. I failed to appreciate as to how refund can be denied on mere filing of the reference case in which there cannot be any question of stay of the operation of the order of the Tribunal as is admitted by Mr. Shahi also. 9. It is really unfortunate that despite appeal of the petitioner was allowed by the learned Tribunal long back on 27.3.2003 the respondent-Customs authorities kept the amount withheld and not released even after opportunity was granted by this Court repeatedly. 10. In the case of Northern Plastics Ltd. vs. Collector of Customs and Central Excise, reported in 1999 (113) E.L.T. 3 (S.C.) more or less in similar circumstances the Apex Court has held that the goods having been sold away the respondent- Customs authorities is now not in a position to return the goods to the applicant. As this situation has been brought about by the respondents by his own acts he cannot now escape from the liability of returning to the applicant the money value of the said goods. The Apex Court in the said case thus directed for return of the money value of the goods which were illegally confiscated by them with 12% interest. 11. In this case the Customs authorities valued the confiscated betel-nut at Rs. 17,02,000/- as is evident from paragraph 2 of the order of the learned Tribunal contained in Annexure-3 The petitioner with reference to bill contained in Annexure-1 has, however, only claimed Rs. 4,48,500/- and, as such, in view of law settled by the Apex Court, learned counsel for the petitioner fairly submitted that the petitioner is entitled for refund of the money value of the goods i.e. Rs. 4,48,500/- and, as such, in view of law settled by the Apex Court, learned counsel for the petitioner fairly submitted that the petitioner is entitled for refund of the money value of the goods i.e. Rs. 4,48,500/- with interest as awarded by the Apex Court in the case of Northern Plastics Ltd. vs. Collector of Customs and Central Excise (supra). 12. Under such circumstances, writ application is allowed with cost of Rs. 10,000/-. The Respondent Customs authorities are directed to refund the amount as per Annexure-1 with interest @ 12% as awarded by the Apex Court in the case of Northern Plastics Ltd. and cost within two weeks, failing which the petitioner will be at liberty to file two pages affidavit for revival and initiating appropriate action.