JUDGMENT 1. Petitioner has prayed for a direction to the respondents, i.e. the Department of Customs to pay a sum of Rs.42,28,260 which represents the value of goods destroyed by the Customs authorities. 2. Brief facts are as under: Petitioner is a sole proprietary concern and is engaged in the business of selling medicines. For such purpose, the petitioner was holding a valid drug licence issued by the competent authority. Such drug licence expired on 21.12.2011. Before expiry the petitioner had already applied for renewal of the licence. Such renewal was granted on 10.02.2014 retrospectively extending the licence from 01.01.2012 to 31.12.2016. 3. The petitioner had purchased codeine based cough syrup in the year 2012. The goods in question were seized by the Customs authorities while in transit in the transport vehicles on 01.04.2012. The Customs authorities issued show-cause notice and instituted adjudication proceedings against the petitioner and several other persons who according to the adjudicating authority were involved in illegal trade of the said medicine. The adjudicating authority passed an order in original dated 29.11.2013 confiscating the goods and imposing personal penalties against several noticees including the petitioner. The petitioner alone challenged the said order of adjudication before the Appellate Commissioner. Such appeal was dismissed on 23.02.2015 by the Commissioner (Appeals) against which the petitioner filed further appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT, for short). By an order dated 28.02.2018 CESTAT remanded the proceedings qua the petitioner alone before the adjudicating authority. The adjudicating authority thereupon passed a fresh order dated 30.08.2018 relevant portion of which reads as under: 'DISCUSSION & FINDINGS 11. As ordered by CESTAT, Kolkata vide Order no.FO/75215/2018 dated 28.02.2018, I now proceed to decide the case afresh after considering the submission of Shri Satya Ranjan Saha. 12. On going through the case records and the Order No.COM/CUS/ADDL.COMMR/90/2013 dated 29.11.2013, I find that penalty has been imposed on Shri Satya Ranjan Saha under Section 114 (iii) and 117 of the Customs Act, 1962 mainly on the ground that the drug licence of M/s Universal Drug Centre owned by Shri Satya Ranjan Saha had expired after 31.12.2011 and the same had not been renewed when the consignments of codeine based cough syrup were detected on 01.04.2012. In his order dated 29.11.2013, the Adjudicating Authority opined that M/s Universal Drug Centre, Agartala have been dealing in codeine based cough syrup without the requisite permission from the Drug Controlling Authority. Shri Satya Ranjan Saha could not produce any evidence before the investigation or Commissioner (Appeals) that the Drug Licence had been renewed by the Competent Authority. However, during the Personal Hearing held on 26.06.2018, in the remand proceedings on the direction of Hon ble CESTAT, Shri Satya Ranjan Saha submitted a letter dated 26.06.2018 enclosing copy of the renewed Drug Licence. He also placed the original renewed Drug Licence before the Adjudicating Authority to prove its authenticity. On scrutiny of the renewed Drug Licence, it is found that Shri Satya Ranjan Saha, Licensee of Universal Drug Centre, had been granted the drug licence number 10,931 on 30.01.1996 which was subsequently renewed for the period from 01.01.2012 to 31.12.2016 on 10.02.2014. It is thus evident that on the date of seizure i.e. on 01.04.2012, Shri Satya Ranjan Saha s dealing in the codeine based cough syrup were covered by the said Drug Licence though the copy of the same was not available with him as it was issued much later i.e. on 10.02.2014 by the Licensing Authority. 13. I am therefore of the opinion that the purchase of the codeine based cough syrup made by Shri Satya Ranjan Saha, Proprietor of Universal Drug Centre, Agartala was a valid one and there is no evidence to prove his involvement in the illegal act of exportation of the same through Agartala. Hence, there is no reason to penalise Shri Satya Ranjan Saha under Section 114 (iii) and 117 of the Customs Act, 1962. ORDER 14. In view of the discussions made in Para 10 and 11 above, I refrain from imposing any penalty under the provisions of the Customs Act, 1962 on Shri Satya Ranjan Saha, Proprietor of M/s Universal Drug Centre, Ronaldsay Road, Agartala.' 4. By the said order thus the adjudicating authority deleted the personal penalty against the petitioner for the reasons stated in the above quoted portion. He, however, did not state anything about the confiscation of the goods. The petitioner thereupon approached the Appellate Commissioner who disposed the appeal by an order dated 07.12.2018. He was of the opinion that the adjudicating authority had deleted the penalty but not passed any order on confiscation of the goods. He, however, did not state anything about the confiscation of the goods. The petitioner thereupon approached the Appellate Commissioner who disposed the appeal by an order dated 07.12.2018. He was of the opinion that the adjudicating authority had deleted the penalty but not passed any order on confiscation of the goods. Thus, there was no valid order providing for the confiscation and, therefore, even without filing appeal the petitioner could have approached the competent authority for release of the goods. With these remarks, the appeal was disposed of. The petitioner thereupon approached the Assistant Commissioner of Customs under letter dated 21.01.2019 and requested for release of the goods failing which he requested for payment of a sum of Rs.42,28,260 which was the value of the goods in question. On 08.04.2019 the Assistant Commissioner wrote to the petitioner and stated that the seized goods were already disposed of by way of destruction after the date of expiry of the goods. Thereafter after serving a legal demand notice for payment of sum of Rs.42,28,260 with interest, the petitioner filed this petition. 5. Appearing for the petitioner learned Sr. Counsel Mr. K.N. Bhattacharjee submitted that the Customs authorities have acted wholly arbitrarily and illegally. Even while the appeal of the petitioner was pending, the goods were destroyed. Such destruction was carried out without any notice to the petitioner. It was the duty of the Customs authorities to either have returned the goods or auctioned it in the market so that if the petitioner ultimately succeeded, the sale price could be returned to the petitioner. In this context, he has relied on certain decisions reference of which would be made at a later stage. 6. On the other hand, learned counsel for the department opposed the petition contending that the adjudicating authority had passed an order which was bona fide . At first stage the Appellate Commissioner had confirmed such order. The Tribunal merely remanded the proceedings for fresh consideration only qua the petitioner. The petitioner s claim for release of the goods is not maintainable since in the meantime, the goods were destroyed due to lapsed validity of the drug. 7. The petitioner has not been able to build a case of mala fide or vindictive action on part of the adjudicating authority in originally initiating proceedings and eventually ordering confiscation of goods and imposing personal penalties on the petitioner and other co-noticees. 7. The petitioner has not been able to build a case of mala fide or vindictive action on part of the adjudicating authority in originally initiating proceedings and eventually ordering confiscation of goods and imposing personal penalties on the petitioner and other co-noticees. In fact, other co-noticees did not challenge the order. Qua them such order be achieved finality. Only petitioner carried the order in appeal. Commissioner of Appeal had confirmed the order. The Tribunal remanded the proceedings for fresh consideration by the adjudicating authority. In the second round, the adjudicating authority found that personal penalty should not be imposed on the petitioner. In the process, he made no comments about the confiscation of the goods. It was, therefore, that the Commissioner allowed the petitioner to approach the competent authority for release of goods since there was no order for confiscation and the earlier order of confiscation was set aside by the Tribunal. When the petitioner approached the authority, it was revealed that the goods were already destroyed because by then the validity period of the drug had expired. 8. Under such circumstances, the Customs authorities cannot be saddled with refunding of the value of the goods to the petitioner. The Customs authorities having acted bona fide , the department cannot be asked to compensate the petitioner for incidental loss suffered by him on account of the pendency of the proceedings. It is neither the case of the petitioner that wholly mala fide in order to harass the petitioner the proceedings were initiated or that the same protracted. When the Customs authorities acted bona fide , even though as the hindsight would suggest, incorrectly, the incidental loss suffered by an assessee cannot be ordered to be compensated by the Customs department. 9. In fact, a part of the blame for destruction of the drugs must be attached to the petitioner itself. Under the Customs Act, provisions are there where under certain circumstances even after confiscation of the goods in respect of which any of the legal breaches are detected, the authority can provide for redemption fine and on payment of which in lieu of absolute confiscation, the goods can be returned to its owner. The petitioner could have applied for such redemption fine. Could also have approached the High Court for release of the goods on certain conditions in view of impeding expiry of the drugs. The petitioner could have applied for such redemption fine. Could also have approached the High Court for release of the goods on certain conditions in view of impeding expiry of the drugs. The petitioner could also have urged the Customs authorities to auction the goods well in time so that the market price could have been fetched and if the petitioner ultimately succeeded such sale price could have been paid over to the petitioner. 10. In case of Kailash Ribbon Factory Ltd. v. The Commr. Of Customs and Central Excise and another reported in (2002) 97 DLT 826 Division Bench of Delhi High Court was concerned with the case where the Customs department during the pendency of the appeal of the petitioner without permission of the Court auctioned the confiscated goods in a clandestine manner. It was in this background that the High Court compensated the petitioner for serious lapse on part of the respondents. The Court eventually directed refund of the price fetched through such auction with interest. The ratio of the said decision would not apply in the present case. 11. Likewise, in case of Northern Plastics Ltd. (Now merged with Consolidated Photo and Finvest Ltd.) v. Collector of Customs and Central Excise reported in AIR 1999 SC 3643 the facts were that a batch of jumbo rolls of photographic colour films were imported by the petitioner in January, 1989 by filing bill of entries for clearance of goods. Such goods were not cleared by the Customs authorities since they had doubt about the correct classification. During the pendency of such proceedings, the goods were sold for Rs.48 lakhs since they were highly perishable in nature and had to be stored in an air-conditioned place. The confiscation order was eventually set aside. It was in such background, the Supreme Court ordered that the department should pay the whole value of the goods and not just the price fetched during the auction. Again the facts of the said case are different. In the present case, during the pendency of the proceedings before the order of confiscation of the goods were set aside by the CESTAT and issues were re-decided by the adjudicating authority, the drugs had expired and, therefore, destroyed. 12. In the result, petition is dismissed. Pending application(s), if any, also stands disposed of.