Madras High Court
Collector Of Customs vs Meena A. Bharwani on 21 September, 2001
Equivalent citations: 2006(194)ELT273(MAD)
Author: C. Nagappan
Bench: C. Nagappan
JUDGMENT C. Nagappan, J.
1. This writ appeal has been preferred against the order of the learned Single Judge, dated 10-3-1994, made in W.P. No. 1091 of 1986 on the file of this Court .
2. The respondents are the appellants herein.
3. The petitioner is a resident of Okinawa, Japan and on a visit to India to see her parents, she arrived along with her new-born child in Madras on 30-5-1979. The journey from Tokyo to Madras had been re-routed through Colombo due to unavoidable reasons. At the time when she arrived at the Madras Airport, she was exhausted and was in a hurry to get through the customs. She was wearing and having in her baggage gold and diamond studded jewellery and had not declared the same to the authorities. The Additional Collector of Customs by his order confiscated the gold jewellery weighing 52 grams valued at Rs. 4680/- and diamond studded jewellery valued at Rs. 25/400/- under Section 111(d) and (i) of the Customs Act, 1962. He also imposed a penalty of Rs. 6000/-to the petitioner under Section 112 of the Act. Even though the petitioner did declare certain jewelleries on arrival, the jewelleries in question were not declared and on an examination of the petitioner's baggage they were found out. The petitioner preferred an appeal against the order of the Additional Collector to the erstwhile Central Board of Excise and Customs on 6-3-1980. The Board confirmed the order and the petitioner preferred a revision petition to the Government of India. On the formation of the Tribunal, the revision petition was transferred to the Customs, Excise and Gold (Control) Appellate Tribunal and the Tribunal by order, dated 14-10-1983, ordered to allow the jewellery to be cleared on payment of fine to the tune of Rs. 7500/- in lieu of confiscation and the penalty was reduced from Rs. 6000/- to Rs. 1500/-.
The petitioner on 26-11-1983 wrote to the second respondent seeking return of the jewellery. The second respondent replied by letter, dated 2-1-1984, that the jewellery was not available for release because the gold had been deposited in the Government Mint and the diamonds had been sold in public auction and it is further slated that they were awaiting the value of the sale proceeds to find out whether any amount was refundable to the petitioner. By a further letter, dated 23-2-1984, the petitioner was informed that the total sale proceeds was Rs. 34,439.35 and the duty recoverable on the jewellery worked out to Rs. 35,160/- and on adding redemption fine of Rs. 7500/- no amount was refundable to the petitioner. It was also further stated in that letter that out of the penalty of Rs. 6000/- collected, a refund of Rs. 4500/- had already been made as the order of the Tribunal. The petitioner issued a notice on 3-5-1984 seeking return of the jewellery and she did not get any reply. The petitioner filed the writ petition for issue of a writ of mandamus to direct the respondents to give effect to the order of the Tribunal, dated 14-10-1983.
4. The respondents in their counter affidavit did not dispute the material facts leading to the order of the Tribunal. It is stated in the counter that the gold Jewellery was deposited with the Government of India Mint at Bombay in July, 1980 and the diamonds were sold in auction in July, 1983 and after that only the second respondent received a letter from the Tribunal on 25-7-1983 enclosing a copy of the grounds of appeal. The respondents had informed the Tribunal by communication, dated 18-8-1983, about the disposal of the jewellery. Before that, the respondents had also informed to Government of India by letter, dated 10-9-1980, that gold Jewellery had been disposed of. The claim for return of jewelleries long after their disposal is not sustainable. The petitioner is liable for payment of duty apart from the fine and penalty levied on her. The direction sought for by the petitioner to return the jewelleries is not sustainable.
5. The learned Single Judge, on a consideration of the matter, came to the conclusion that the respondents had informed the Tribunal on 18-8-1983 about the disposal of the jewellery and the Tribunal ought to have passed an appropriate order taking note of the disposal of the jewellery, the second respondent is not entitled to demand a duty at the rate of 120% since the Tribunal does not warrant the imposition of any duty as claimed by the second respondent and the second respondent should have returned a sum of Rs. 26,939.35 being the balance of sale value after deducting redemption fine of Rs. 7500/- on 23-2-1984 itself and directed the respondents to refund the sum to the petitioner with interest at 12% per annum from 23-2-1984 onwards, by allowing the writ petition. Aggrieved by the same, the respondents have preferred the present appeal.
6. The material facts leading to the order of the Tribunal are undisputed. The confiscated gold jewellery had been disposed of in July, 1980 and the diamond jewellery also was sold in July, 1983 and, afterwards, the second respondent on 25-7-1983 had received a letter from the Tribunal enclosing a copy of the grounds of appeal. The respondents have duly informed the Government of India as well as the Tribunal about the disposal of the jewelleries. The Central Board confirmed the order of confiscation by its order, dated 6-3-1980 and the petitioner did not take steps to file a revision immediately and had kept quiet. It is needless to say that a party, who is seeking redress in a court of law or a quasi judicial authority, ought to be vigilant in protecting his rights. The petitioner was not vigilant and allowed the jewelleries to be disposed of. As per the records, the jewelleries were disposed of according to rules and the sale proceeds was Rs. 34,439.35. The Tribunal ought to have passed an appropriate order taking note of the disposal of the jewelleries by the respondents. Instead, the Tribunal has ordered to allow the confiscated jewelleries to be cleared on payment of fine of Rs. 7500/- in lieu of confiscation and they have further ordered the reduction of personal penalty to Rs. 1500/- from Rs. 6000/-. In so far as the order pertaining to the reduction of penalty is concerned, admittedly the respondents have refunded the balance amount of Rs. 4500/- to the petitioner. In so far as the order relating to return of confiscated jewelleries on payment of a fine of Rs. 7500/- in lieu of confiscation is concerned, the jewelleries no longer exist and only sale price of Rs. 34,439.35 was with the respondents. The respondents could have deducted the fine of Rs. 7500/- from the sale price and could have returned the sum of Rs. 26,939.35 as sale proceeds of the jewelleries to the petitioner as per the order of the Tribunal. They did not do so. Instead, the second respondent demanded a duty at the rate of 120% amounting to Rs. 35,160/- along with redemption fine of Rs. 7500/- from the petitioner. The Tribunal in its order did not impose any duty as claimed by the second respondent. The learned counsel for the appellants/respondents contended that the petitioner is liable for the payment of the duty apart from the fine and penalty levied on her as per Section 125(2) of the Customs Act. As already seen, the petitioner has preferred a revision against the order of the Board in the appeal and after adjudication, the Tribunal has passed final order. The respondents are bound by the order passed by the Tribunal. The Tribunal did not impose any duty on the petitioner and in such circumstance*, the respondents cannot impose a duty at the rate of 120% in addition to the redemption fine. Any such imposition if made would amount to varying the order of the Tribunal, which is not permissible in law. The contention of the appellants can never be accepted. The respondents are bound to refuhd the balance sale price of Rs. 26,939.35 and the petitioner is entitled to that amount along with interest at the rate of 12% per annum. We agree with the reasonings of the learned Single Judge in entirety.
7. In the result, the writ appeal is dismissed with costs.