TMI Blog2011 (1) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... he Department, the question of exercising the option as directed by this Court will not arise - Hence the department is not in a position to release the sale proceeds since the CEGOT had upheld the final order passed by the Department and the Tribunal's order was not set aside - It was pointed out that this Court while passing order relied upon the judgment of Kolkatta Tribunal in the case of Hiralal Bhagat v. Commissioner of Customs - Tribunal held since the seized goods were not available and due to liberalization such goods are not barred from being brought in, permission was granted to the aggrieved party to redeem the same on payment of redemption fine and duty - Therefore, the prayer made by the petitioner cannot be countenanced by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the silver ingots as well as the penalty were also made on 24.08.1993. The petitioner sent a reply dated 15.09.1993. It was claimed by him that the silver ingots were purchased from importers who have duly imported it under the baggages on payment of duty. On 10.11.1993, a further reply was submitted by the petitioner through his consultant with evidence of requisite import duty. A personal hearing was held on 05.08.1994. The cross examination of witnesses as well as officers were also made. 5. On 19.12.1994, an Order-in-Original (O.I.C) was passed by the second respondent Commissioner of Customs. He made an absolute confiscation of the 6 silver bars under Section 111(d) of the Customs Act 1962 r/w Section 3(3) of the Foreign Trade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the matter was subjudice and the order of absolute confiscation by the adjudicating authority was set aside by this Court in W.P.No.14948 of 1998 and that order had reached its finality. Therefore, there would have been no impediment on the part of the respondent to allow redemption of the seized goods made or in the alternative disburse the sale proceeds less the statutory charges. The disposal of the silver ingots without intimation to the petitioner was untenable and violative of Section 48 of the Customs Act. Despite the departmental instructions, even during the pendency of the writ petition, it was sold in the year 1998. Therefore, the respondents should have returned the sale proceeds of the disbursed silver ingots which he is lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngots confiscated from the petitioner are not available, which fact is disputed by the learned counsel for the petitioner, I am of the view that this writ petition can be disposed of by directing the respondents to consider the case of the petitioner for imposition of redemption find in lieu of total confiscation, if the silver ingots seized from the petitioner are still available with the Department, in the sense that the order of the authorities has been confirmed, but modified to the extent that in respect of total confiscation, the petitioner's case can be considered." (Emphasis added) 11. Opposing the request of the petitioner, in the counter affidavit, it was stated that the case of the petitioner cannot be countenanced. The order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not set aside. It was pointed out that this Court while passing order relied upon the judgment of Kolkatta Tribunal in the case of Hiralal Bhagat v. Commissioner of Customs. There the Tribunal held since the seized goods were not available and due to liberalization such goods are not barred from being brought in, permission was granted to the aggrieved party to redeem the same on payment of redemption fine and duty. 13. Reliance was placed by the petitioner upon the judgment of the Supreme Court in Hargovind Das K.Joshi v. Collector of Customs reported in 1992 (61)E.L.T.172 (S.C.), where it was held that that the option of redemption fine should have been given by the authorities. The respondents have not done so. 14. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. As this situation has been brought about by the respondent by his own acts he cannot now escape from the liability of returning to the applicant the money value of the said goods. If without challenging the first order passed on 31.1.1989 and the interim order passed by the Gujarat High Court in favour of the applicant on 27.04.1989 the respondent had returned the goods on the terms and conditions imposed by the Gujarat High Court then he would not have landed himself in this situation. It should have been realised by the respondent while challenging the said orders and retaining the goods in his possession that the goods were of perishable nature and that they required air conditioned accommodation. Having made all attempts to prevent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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