Allowed

Nivaram C.Devasy v. Union of India and Ors.

Bombay HC11 Sept 2012WP/2340/1998

Case brief

AI extract

What is this about?

The High Court quashed the orders confiscating the petitioner's electronics goods purchased as duty-paid items. Relying on a superior tribunal's finding that the discrepancies did not prove smuggling, the court directed the refund of deposited amounts and withdrawal of the bank guarantee.

What did the court decide?

Quashing of confiscation orders; cancellation of bank guarantee and return of deposited sum of Rs.2,74,340/- with 6% interest.

Nivaram C.Devasy Vs Union of India and Ors. — Writ and Judicial Review | Bombay HC (2012)

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wp2340-98

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.2340 OF 1998

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Niva	ram Chopaji Devasy,	]
of B	ombay, Indian Inhabitant	]
resid	ing at Room No.511,	]
Ram	Niwas Building, 7^thLane,	]
Kam	athipura, Mumbai-400 008.	]	..Petitioner.
	V/s.
1.	Union of India (through the Secretary,	]
	Ministry of Law & Justice, Department	]
	of Legal Affairs Branch, Secretariat,	]
	Aayakar Bhavan, M.K. Road,	]
	Mumbai – 400 020.	]
2.	The Commissioner of Customs	]
	(Appeals), Airport, having his	]
	office at Sahar International Airport,	]
	Sahar, Andheri (E), Mumbai–400 099.	]
3.	The Additional Commissioner of	]
	Customs (Preventive), having his	]
	Office at New Customs House,	]
	Ballard Estate, Mumbai–400 028.	]
4.	The Astt. Commissioner of Customs,	]
	R & I Division, 11^thFloor, New Customs	]
	House, Ballard Estate, Mumbai – 400 028.	]	..Respondents.

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Mr. H.R. Shetty for the petitioner.

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Mr. A.S. Rao for the respondents.

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CORAM : J.P. DEVADHAR AND R.D. DHANUKA, JJ.

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DATED : 11TH SEPTEMBER, 2012

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

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This petition is filed to challenge the order in original dated 17^th September, 1998 as well as the order passed by the Commissioner of Customs (Appeals) on 30^th October, 1998.

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Although appeal against the order of the Commissioner of Customs (A) is maintainable before the CESTAT, since the petition filed to challenge the order passed by the Commissioner (A) has been admitted on 1^st December, 1998 and the Writ Petition is since pending for more than a decade, we consider it proper to dispose of the Writ Petition on merits instead of driving the petitioner-assessee to file appeal at this belated stage.

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The relevant facts are that by a common order in original dated 17^th September, 1998 various electronics goods of foreign

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original purchased by the petitioner and Aslam Noor Mohammed were confiscated under the belief that they were smuggled goods.

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The argument of the petitioner as well as Aslam was that the goods in question were brought into India by passengers alighting at Trivandrum Airport as unaccompanied baggage and the said goods have been cleared on payment of customs duty and that the petitioners have purchased those duty paid goods. In support of their above contention, the petitioner as well as Aslam produced receipts issued by the customs authorities at Trivandrum. However, after noticing some discrepancies in the goods and the customs receipts, the assessing officer disbelieved their claim and by order in original confiscated the goods and gave option to the petitioner and Aslam to redeem the goods on payment of redemption fine and penalty.

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On appeal filed by the assessee, the Commissioner of Customs (Appeals) by a common order dated 30^th October, 1998 reduced the redemption fine and personal penalty imposed against the petitioner, but deferred final decision against Aslam in view of proceedings pending before this Court. Challenging the aforesaid order passed by the Commissioner (A), the present Writ Petition is filed by the petitioner.

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While admitting the petition on 1^st December, 1998 this Court permitted the petitioner to redeem the goods by depositing 50% of the duty amounting to Rs.1,64,340/- as well as redemption fine of Rs.1,00,000/- and personal penalty of Rs.10,000/- (Total Rs.2,74,340/-) and to furnish bank guarantee for the remaining amount. The petitioner has accordingly redeemed the goods.

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It is brought to our notice that after the passing of the final order by the Commissioner (Appeals), Aslam had challenged both the order in original as also the final order passed by the Commissioner of Customs (Appeals) and the Tribunal has set aside the said orders to the extent that applies to the case of Aslam. Further appeal filed by the revenue against the order of CESTAT in the case of Aslam has been dismissed by this Court on 24^th August, 2005.

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It is relevant to note that the discrepancy in goods noticed by the adjudicating authority is common to the case of the petitioner and Aslam and they are not separable. Admittedly, in the case of Aslam it is held by the Tribunal that on the basis of the said discrepancy, it cannot be inferred that the goods in question are smuggled goods. The said order of the Tribunal has been upheld by

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this Court. In these circumstances, in our opinion, the decision of the adjudicating authority as well as the Commissioner (A) in holding that the goods purchased by the petitioner are smuggled goods cannot be sustained. In the result, we quash and set aside the order in original dated 17^th September, 1998 as also the order dated 30^th October, 1998 passed by the Commissioner of Customs (Appeals) in so far as it relates to the petitioner.

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Accordingly, the Rule is made absolute in the above terms.

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The respondents shall cancel the bank guarantee furnished by the petitioner and return the same to the petitioner. The amount of Rs.2,74,340/- deposited by the petitioner shall also be returned to the petitioner with interest @ 6% p.a. from the date of deposit till the date of payment.

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The petition is disposed of in the above terms with no order as to costs.

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(R.D. DHANUKA, J.) (J.P. DEVADHAR, J.)

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Nivaram C.Devasy v. Union of India and Ors.

Case brief

What is this about?

What did the court decide?

Nivaram C.Devasy v. Union of India and Ors.

Case brief

What is this about?

What did the court decide?

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