Bombay High Court High Court

Shabir Ahmed Abdul Rehman vs The Union Of India on 3 December, 2008

Bombay High Court
Shabir Ahmed Abdul Rehman vs The Union Of India on 3 December, 2008
Bench: P. B. Majmudar, J.P. Devadhar
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY

              ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                  
                    WRIT PETITION NO.2488 OF 1998




                                          
    Shabir Ahmed Abdul Rehman,                    )
    presently residing at post Ambat,             )
    Tal. Mahasale, Dist. Raigad,                  )
    Maharashtra State - 402 101.                  )..Petitioner.




                                         
            V/s.


    1)    The Union of India                      )




                                
          Having office at Ayakar Bhavan,         )
          new Marine Lines, Mumbai-20.            )
                                                  )
    2)
                     
          The Joint Secretary to the
          Govenment of India, having his
          office at 3rd floor, Jeevan Deep,
                                                  )
                                                  )
                                                  )
          Parliament Street, Sansad Marg,         )
                    
          New Delhi - 110 001.                    )
                                                  )
    3)    Commissioner of Customs (Appeals)       )
          having his office at 1st floor,         )
          Air Cargo Complex, NIPT, Sahar,         )
          Andheri (East), Mumbai-400 099.         )
      


                                                  )
    4)    Commissioner of Customs, having         )
   



          his office at Sahar International       )
          Airport, Mumbai-400 099.                )
                                                  )
    5)   Deputy Commissioner of Customs,          )
         having his office at Air Customs         )





         Pool, Sahar International                )
         Airport, Mumbai-400 099.                 )..Respondents.



    Mr.Sujay Kantawala with N.M.Shah, Ramesh Purwani                   and





    Brijesh Pathak for petitioner.


    Mr.R.V.Desai,    senior   advocate with Pradeep Jetly              for
    respondents.


                                CORAM : P.B.MAJMUDAR AND
                                        J.P.DEVADHAR, JJ.

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                                            DATED :         3RD DECEMBER, 2008.

    ORAL JUDGMENT (PER J.P.DEVADHAR, J)




                                                                                     
                                                             
    1.           During      the      pendency           of       an     appeal        filed

    against    the    confiscation order, whether                          the     customs

authorities could sell the confiscated gold and when it

is ultimately held that the petitioner is entitled to

redemption of the confiscated gold, whether the sale

proceeds could be returned after deducting the customs

duty from the sale proceeds, is the question raised in

this petition.

2. In the present case, on 17/4/1997 the

petitioner on his arrival from Muscat was apprehended

at the Airport as he was carrying 41 gold bars valued

at Rs.18,88,337/- (international market value) /

Rs.23,16,500/- (local market value) concealed in a

pouch. The said gold bars were seized from the

petitioner on the reasonable belief that they are

liable to be confiscated.

3. Thereafter, on completion of investigation,

a show cause notice was issued to the petitioner on 3rd

July, 1997 and by an order in original dated 11/11/1997

(despatched on 25/11/1997) it was ordered that the

seized gold bars are liable to be confiscated and

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penalty of Rs.3,00,000/- was also imposed.

4. Being aggrieved by the aforesaid order, the

petitioner filed an appeal before the Commissioner of

Customs (Appeals) who by his order dated 23/2/1998

directed reshipment of the gold in question subject to

payment of reshipment fine of Rs.6,00,000/-. The

Commissioner (A) reduced the personal penalty from

Rs.3,00,000/- to Rs.1,00,000/-.

5.

Being aggrieved by the aforesaid order, both

the Commissioner of Customs as also the petitioner

filed revision application before the Government of

India. By the impugned order dated 21/9/1998 the Joint

Secretary to the Government of India held that the

petitioner is entitled to redeem the confiscated gold

subject to payment of duty and also fine and penalty

imposed by Commissioner (A). As the gold was already

disposed off, the Commissioner was directed to return

the sale proceeds subject to payment of duty, fine and

penalty. Challenging the aforesaid order, the present

petition is filed. The revenue has accepted the

decision of the revisional authority.

6. Mr.S.N.Kantawala, learned counsel appearing

on behalf of the petitioner submitted that the order in

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original dated 11/11/1997 was received by the

petitioner on 25/11/1997 and by a letter dated

28/11/1997 the petitioner had informed the customs

authorities that the petitioner is filing an appeal

against the adjudication order and the confiscated gold

should not be disposed of. As per circular dated

16/11/1994, the customs authorities ought not to have

disposed of the confiscated gold during the pendency of

the appeal. Relying upon the decision of the Delhi

High Court in the case of Kailash Ribbon Factory Ltd.

    V/s.    Commr.
                       
                      of Cus.          & C.    Ex., New Delhi reported in

    2002(143)    E.L.T.           60   (Del.), Collector               of     Customs,
                      
    Madras    V/s.     Meena A.Bharwani reported in 2006                           (194)

    E.L.T.      273   (Mad.) and the decision of this Court                             in

    the    case of Girdharlal Kalyandas Advani V/s.                           Union of
      


    India     reported       in    1992(58)          E.L.T.          453       (Bom.),
                                                                               (Bom.)
   



    Mr.Kantawala      submitted that the petitioner is entitled

    to    the market value of the confiscated goods                           together





    with    interest thereon at the rate fixed by this                             Court

from the date of auction till payment.

7. Mr.R.V.Desai, learned senior Advocate

appearing on behalf of the respondents, on the other

hand submitted that in the present case, although the

petitioner had informed by his letter dated 28/11/1997

that the petitioner would be filing an appeal against

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the adjudication order, by a letter dated 5/12/1997

Advocate or the petitioner was informed that the

confiscated gold had already been handed over to the

basement warehouse of New Custom House for disposal.

Accordingly, the gold bars in question were sold on

12/2/1998 and the sale proceeds received were in the

sum of Rs.18,98,965/-. He submitted that in the light

of the Notification No.42/89-Cus.(NT) dated 30th June,

1989 the customs authorities were justified in

disposing off the confiscated gold.

8. Mr.Desai, further submitted that as per the

order passed by the revisional authority, the amount

payable to the petitioner after deducting the baggage

rate of duty, redemption fine and penalty from the sale

proceeds comes to Rs.2,16,724/-. Mr.Desai submitted

that the respondents were ready and willing to pay the

said amount to the petitioner, however, since the

whereabouts of the petitioner was not known, the

customs authorities could not pay the balance amount of

Rs.2,16,724/-. Accordingly, Mr.Desai submitted that in

the facts of the present case, since the customs

authorities were always ready and willing to pay the

balance amount of Rs.2,16,724/-, there is no question

of paying the said amount with interest.

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    9.             We    have      carefully          considered           the      rival

    submissions.         Admittedly, the order in original                          dated




                                                                                  

11/11/1997 was despatched on 25/11/1997 and by a letter

dated 28/11/1997 the petitioner had informed the

customs authorities that he is filing an appeal against

the order in original. No doubt that by the letter

dated 5/12/1997 the customs authorities had informed

the petitioner that the confiscated gold has already

been handed over for disposal. Handing over the

confiscated gold immediately after serving the order of

confiscation

itself was improper. In any event after

receiving letter from the petitioner, the customs

authorities ought to have stopped the auction sale of

the confiscated gold. However, the gold was sold on

12/2/1998 during the pendency of the appeal filed by

the petitioner before Commissioner (A). The finding

recorded by the revisional authority and accepted by

the revenue is that the action of the customs

authorities in selling the gold during the pendency of

the appeal is against the existing departmental

instructions and is not in good taste. Therefore, the

argument of the revenue in selling the gold during the

pendency of the appeal cannot be accepted.

10. Since the petitioner seeks redemption of the

confiscated gold as per the order passed by the

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revisional authority, the first question to be

considered is, whether the petitioner is justified in

claiming market value of the said gold ? It is not in

dispute that the market value of the gold was falling

at the relevant time. In fact, the specific case of

the petitioner before the Commissioner (A) was that the

prices of the gold had fallen sharply (see page 106 of

the petition). In these circumstances, the claim of

the petitioner in seeking market value of the gold

cannot be accepted.

11. The question then to be considered is,

whether the petitioner is entitled to the sale proceeds

after deducting duty, fine and penalty imposed upon the

petitioner ? Since the petitioner is seeking

redemption of the confiscated gold, he cannot escape

payment of fine and penalty. In fact, counsel for the

petitioner offered to pay fine and penalty. As regards

payment of duty is concerned, in our opinion, duty

would be payable only if the gold was actually allowed

to be redeemed. In the present case, what is being

given is the sale proceeds and not the gold as such.

In such a case, the question of paying duty in respect

of the sale proceeds would not arise.




    12.              The   argument of the revenue that they                        were




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    ready    to pay the balance amount of Rs.2,16,724/-,                                but

    the    petitioner      was not available cannot be                        accepted,




                                                                                   
    because,    firstly,          nowhere in the affidavit                    in     reply




                                                           

filed on behalf of the revenue it is so stated and such

contention is being raised for the first time during

the course of arguments. Secondly, the petitioner has

filed the present petition through an Advocate in the

year 1998 and nothing prevented the customs authorities

in addressing a letter to the Advocate for the

petitioner in that behalf.

13. In this view of the matter, in our opinion,

the customs authorities are liable to return the entire

sale proceeds without deducting therefrom the duty but

subject to deduction of fine of Rs.6,00,000/- and

penalty of Rs.1,00,000/- imposed by the Commissioner

(A) with interest.

14. Accordingly, we direct the customs

authorities to deduct Rs.7,00,000/- towards fine and

penalty from the amount of Rs.18,98,965/- and pay the

balance amount of Rs.11,98,965 with interest at the

rate of 9% p.a. from the date of the revisional order

dated 21/9/1998 till payment.




    15.          Rule      is      made absolute in the                  above       terms




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    with no order as to costs.




                                                                      
                                              
                                              (P.B.MAJMUDAR J.)




                                             
                                              (J.P.DEVADHAR, J.)




                                 
                  
                 
      
   






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