SHLM KUMAR BANERJEE, J. ( 1 ) THE writ petitioner/respondent was transporting betel c tuts through three trucks which were seized by the customs authority. A show-cause notice under Section 124 of the Customs act, 1962 was give n to the writ petitioner/respondent. After considering the reply to the show-cause notice the adjudicating authority passed a reasoned order dated November 24, 1999 appearing at pages 29-50 of the paper book. The authority came to conclusion that the department failed to prove that the betel nuts seized by the department were of foreign origin and thus directed release of the goods or payment of the sale proceeds in case goods were sold in auction. The relevant paragraph of the order of the adjudicating authority is quoted below: "i order unconditional release of 33320 kgs. betel nuts valued at rs. 47,95,200/-seized in the seizure case No. 13/imp/cl/cus/ slg/dpu/99 dated 07-02-1999, in favour of Shri Ratan Lal Jain and Shri Vijoy Kumar Jain of Dhupguri, Jalpaiguri. In case the goods have already been sold by auction the sale proceeds thereof may be refunded to the rightful claimants". ( 2 ) BEFORE issuance of the show-cause notice those three trucks were released upon furnishing security of Rs. 40,000/ -. Since the goods were perishable in nature the authority claimed that they sold the goods and thereby realised a sum of Rs. 12,81,200/ -. ( 3 ) THE customs authority accepted the order of the adjudicating authority by not preferring any appeal from the said order. The authority paid the said sum of Rs. 12,81,200/- to the writ petitioner/respondent, however, failed to refund the security deposit of Rs. 40,000/- The authority also did not pay the difference of the rvalue of the goods and the sale proceeds to the writ petitioner/respondent as claimed by them. ( 4 ) WRIT petition was filed before this Court. The learned single Judge considered the matter. The learned Single Judge allowed the writ petition by judgment and order dated September 9, 2002 appearing at pages 146-153 of the paper-book. The learned single Judge came to a finding that the authority failed to produce any documemt in support of their claim that the goods had already been a sold in public auction. The authority also failed to produce any document to show that the writ petitioner/ respondent was notified before the sale took place. The learned single Judge came to a finding that the authority failed to produce any documemt in support of their claim that the goods had already been a sold in public auction. The authority also failed to produce any document to show that the writ petitioner/ respondent was notified before the sale took place. The learned Judge relied upon the Apex Court decision in the case of Northern Plastics ltd. vs. Collector of Customs and Central Excise reported in (2000) 1 SCC 545 . The paragraph relied upon by His Lordship is quoted below: ". . . . . . . . . cannot nowbe pe rmitted to take the advantage of his own wrong and contend that the value of the goods should be determined only at Rs. 48. 50 lakhs inclusive of its value and the amount of duty payable thereon because they could be sold at that price only. We also cannot accept the contention of the learned counsel for the respondent that if the applicant has suffered any loss as a result of the wrongful act of the respondent then he should file an action in tort and this court cannot order payment of any amount in these applications. No doubt it would be open to the applicant to initiate such an action if it feels that the loss suffered by it is more than rs. 33. 04 lakhs. Merely because it is open to the applicant to initiate such an action it would not be just and proper to refuse the claim made in these applications as in any case the applicant is entitled to return of the money value of the goods which were illegally confiscated by the respondent. . . . . . . . . . . . . . . . " ( 5 ) RELYIRIG on the said decision of the Apex Court in the Northern plastic Ltd. (supra) the appellant was directed refund of the security deposit as well as payment of the differential amount together with interest at the rate of 12 per cent per annum in case of default of payment within the stipulated period. ( 6 ) BEING aggrieved by the judgment and order of His Lordship dated september 9, 2002 the present appeal was filed by the Commissioner of- Customs and other departmental officers. . ( 7 ) MR. Sibdas Banerjee, learned ' senior. ( 6 ) BEING aggrieved by the judgment and order of His Lordship dated september 9, 2002 the present appeal was filed by the Commissioner of- Customs and other departmental officers. . ( 7 ) MR. Sibdas Banerjee, learned ' senior. Counsel appearing for the appellant, contends that the security deposit was withheld by the authority in absence of appropriate discharge being given on behalf of the truck owners. He also contends that there was no valuation done By the authority in respect of the goods. The authority directed return of the goods or in lieu sale proceeds in case auction was held. Since the goods were perishable in nature the authority was duty bound to dispose of the same as had already been done in the instant case and the entire sale proceeds. were paid to the respondent. Hence, there was no occasion for the learned Judge to intervene at that stage. Mr. Ramesh Chowdhury, learned Counsel appearing for the writ petitioner/respondent, on the other hand, contends that it was the duty of the customs authority to sell the confiscated goods by public auction and that too upon giving proper notice to the owner of the goods. In the instant case, neither any notice was given to him nor any public auction was held. The department failed to disclose any document in support of their case. Mr. Chowdhury has further relied upon a Division Bench decision of the Delhi High Court in the case of Kailash Ribbon Factory Ltd. vs. Commissioner of Custom Si central Excise, New Delhi, reported in 2002 (143) ELT 60 (Del. ). ( 8 ) WE have perused the Division Bench decision of the Delhi High court. Their Lordships relied upon the decision in the case of Northern plastic Ltd. (supra) and directed payment of the value of the confiscated goods together with interest thereon. Their Lordships also directed the authority to give a general circular to all the officers that henceforth they should adhere to the norms in respect of confiscation of the goods. ( 9 ) TO go into the controversy, recapitulation of the relevant sections, in our 'view, is necessary. Their Lordships also directed the authority to give a general circular to all the officers that henceforth they should adhere to the norms in respect of confiscation of the goods. ( 9 ) TO go into the controversy, recapitulation of the relevant sections, in our 'view, is necessary. ( 10 ) UNDER Section 110 if a proper officer of the customs authority has reason to believe that any goods are liable to confiscation under the Act, he may seize the goods and once the goods are seized he is duty bound to serve notice under Section 124 within six months from the date of seizure of the goods and in default goods are liable for release. Under section 124 a show-cause notice is to be issued asking the owner to show cause as to why the goods would not be confiscated and why penalty would not be imposed on the owner of the goods. It is provided that no order confiscating the goods or imposing the penalty can be made without giving sufficient opportunity to the owner to defend himself in the said proceeding. Under Section 112 the department is also empowered to impose penalty on the confiscated goods after being satisfied that it is vulnerable to duty. Under Section 112 (b) the penalty has been provided. In case of any prohibited goods penalty is liable to be imposed not exceeding the value of the goods or Rs. 5,000/- whichever is greater and in case of dutiable goods penalty would not exceed the duty sought to be evaded or Rs. 5,000/- whichever is greater. ( 11 ) APPLYING the law as discussed above in the instant case, we are of the view that once the goods were seized it was the duty of the authority to come to a definite conclusion that the goods were liable for confiscation under the Customs Act meaning thereby either the goods were prohibited goods or the goods were liable to customs duty. Show-cause notice was appropriately given. Since the goods were perishable in nature the authority was entitled to sell the goods. However, they should have adopted the procedure laid down in the Act itself and the rules made thereunder, In the instant case, the authority found that the department failed to prove that the goods were foreign origin. Hence, question of the goods being prohibited items or dutiable items did not arise. However, they should have adopted the procedure laid down in the Act itself and the rules made thereunder, In the instant case, the authority found that the department failed to prove that the goods were foreign origin. Hence, question of the goods being prohibited items or dutiable items did not arise. Hence, question of ascertaining its value for the purpose of imposition of penalty under Section 112 did not arise. Mr. Chowdhury has tried to contend that since the paragraph quoting (supra) the order of the adjudicating authority mentioned the value of the goods as Rs. 47,95,200/- the writ petitioner/respondent was entitled to return of the goods or the value thereof as set out therein. ( 12 ) WE have carefully perused the said order. As per the seizure fist the value was declared at Rs. 26,44,800/- as would appear from the seizure fist appearing at pages 113-115 of the paper book. The said valuation was qualified as subject to market valuation. In our view, once the adjudicating authority came to a conclusion that the department failed to prove that the goods were of foreign origin there was no occasion for the authority to adjudicate the value as required under Section 112. The value stated in the paragraph quoted (supra) was possibly derived from the contention of the appellant. In any event, such observation of the adjudicating officer, in our view, is superfluous in view of his ultimate decision. It is true that the customs authority was duty bound to sell the goods by public auction and that too by serving appropriate notice upon the writ petitioner/respondent. They did not adopt such procedure. In fact what amount had actually been received by the customs authority through the sale is a question which needs to be gone into bv an appropriate forum. ( 13 ) SILTING in writ court it was not possible lor the teamed Single Judge or far us in this appeal being the continuation of the writ proceeding to find out what was the actual value of the goods. The writ court, in our view, does not have such expertise to assess the value of the goads. ( 13 ) SILTING in writ court it was not possible lor the teamed Single Judge or far us in this appeal being the continuation of the writ proceeding to find out what was the actual value of the goods. The writ court, in our view, does not have such expertise to assess the value of the goads. In the case of Kailash Ribbon, we are deprived of the relevant particulars as to how -the sale was conducted or how the value was arrived at as the detailed order of the adjudicating authority in that case is not before us. At the same time, we cannot allow the customs authority to make an unjust enrichment for a wrong they committed seizing the articles and thereafter failing to prove that those goods were liable far confiscation. However, it would be improper for the writ court or for us to direct the customs authority to pay the differential value without ascertainng tfae actual value of toe goods. Mr. Chowdhury appearing tax the wot petitioner/ respodent contends that he is having in his possession relevant documents to support the price. We are unable to accept such evidence. for the reasons disclosed hereinbefore. ( 14 ) WE are, therefore, of the view that the learned Single Judge should not have directed payment of the value by taking into account Hie valuation quoted in the order of the adjudicating authority. We also do not find any discussion on the valuation made by the adjudicating authority as to how it could arrive at such variation. ( 15 ) WITH regard to security deposit we are in full agreement wife the learned Single Judge. The customs authority had no business to withhold the security deposit after the confiscation case was dropped by them. The customs authority could have demanded a proper and valid discharge from the truck owner but they were not entitled to withhold the said security deposit. ( 16 ) THE appeal succeeds in part. We direct the customs authority to deposit in any nationalized bank the differential value being the difference of the price quoted in the order of the adjudicating authority appearing at page 48 of the paper book and the actual amount paid to the respondent. ( 16 ) THE appeal succeeds in part. We direct the customs authority to deposit in any nationalized bank the differential value being the difference of the price quoted in the order of the adjudicating authority appearing at page 48 of the paper book and the actual amount paid to the respondent. Such money must be kept in a suitable interest bearing fixed deposit to be kept renewed from time to time subject to further order to be passed by the civil court. Such fixed deposit must be made within a period of two months from date. ( 17 ) THE writ petitioner/respondent would be at liberty to approach the civil court pressing bis claim on account of difference of the price. The civil court woum be free to decide the issue in accordance with law. ( 18 ) IN case such suit is filed within a period of three months from date, the writ petitioner/respondent would be entitled to take the benefit of the Section 14 of the limitation Act as they were sincerely pressing their claim as the writ proceeding as well as in the. appeal. ( 19 ) IN case such deposit is not made-within the stipulated period the customs authority would be liable to pay the said sum together with interest as disected by His Lordship. ( 20 ) IN case despite such deposit no suit is filed, the customs authority would be entitled to withdraw die said sum from the bank. ( 21 ) WITH regard to security deposit we do not wish to interfere and the customs authority is directed to comply with the direction of His Lordship. ( 22 ) THE order of the learned Single Judge is modified accordingly. ( 23 ) THE appeal is disposed of accordingly without any order as to costs. Xerox certified copy of this order be made available to the parties, if applied for upon compliance of all formalities. Appeal allowed in part.