TMI Blog2021 (2) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment Mint along with other quantity of gold seized and which had vested in the Government upon the confiscation orders becoming final. This happened on 20th November, 2007. Through such transfer, the Customs Department had realized the sum of ₹ 8,07,033/- which it offered to refund to the petitioner when the final judgment of the Tribunal was delivered. According to the Customs Department, when the gold was disposed of, the order passed by the Appellate Commissioner held the field and the department did not have any intimation of the petitioner s further appeal before the CESTAT. The petitioner has not disputed this averment of the department made in the order-in-original passed by the Assistant Commissioner on 08.09.2016 as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al sum which must be refunded to him. While not accepting the claim of the petitioner for granting him the market value of the gold on the date of application made by him to the department, it is provided that the said principal sum of ₹ 8,07,033/- will be paid to the petitioner along with simple interest @ 7.5% per annum from 20th November, 2007 (i.e. the date on which the valuation of the gold for the purpose of refund is carried out) till actual payment of the principal sum by the department. This amount shall be released within a period of 3 (three) months from today - Petition disposed off. - W.P (C) 1359 of 2016 - - - Dated:- 1-2-2021 - HON BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON BLE MR. JUSTICE S.G. CHATTOPADHYAY ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty once again passed the order of confiscation upon which the petitioner preferred appeal before the Appellate Commissioner. The Appellate Commissioner dismissed the appeal on 16.12.2013 upon which the petitioner once again approached the CESTAT. The CESTAT passed fresh order in such appeal of the petitioner on 18.04.2016. The appeal was allowed with consequential relief. Relevant portion of the order reads as under: 7. In view of the above settled proposition of law once Appellant Shri Swadesh Ch. Paul has produced the evidence of licit acquisition of 7(seven) gold bars then an enquiry was required to be made at the end of Nantu Banik, Pinky Jewellery to refute the claim of the Appellant Shri Swadesh Ch. Paul. In the absence of any s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case records and submission made by the applicant carefully. In the instant case, Sh. Swadesh Ch. Paul has filed refund claim of market value of 817.700 gm of gold amounting ₹ 22,48,675/- arising out of Order-in-Appeal No. CA-75230, 75231/14 dtd. 18.04.2016 passed by the Hon ble CESTAT, Kolkata in c/w the Seizure Case No. 92/CL/IMP/DPF/AGT/2004 dtd. 12.03.2004 of the DPF Unit, Agartala. From the record it is seen that at the time of disposal of gold there was no record available with the Office of pending appeal in any Appellate forum against said seizure case. Hence, the said gold has been disposed off observing necessary formality and sale proceed amounting.8,07,033/- (Rupees eight lakh seven thousand thirty three) only received o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said refund amount as per the order of the Assistant Commissioner under protest and thereafter filed this petition. Learned counsel for the petitioner submitted that the department ought to have reimbursed the entire market value of the gold on the date of the application for release and could not have tendered only the original sum notionally realised by the department upon disposal of the gold in the year 2007. He submitted that even such disposal was done wholly unauthorisedly. When the gold was disposed of, the appeal of the petitioner against the order of the Appellate Commissioner was pending before CESTAT. Ignoring such fact the seized gold was disposed of without prior notice to the petitioner. [6] On the other hand, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having waited for the period of limitation for filing appeal against the order of the Appellate Commissioner, the department proceeded to dispose of the confiscated goods. As correctly pointed by the counsel for the department, in terms of Section 126 of the Customs Act when any goods are confiscated, the same would vest in the Central Government. Counsel for the petitioner did not bring to our notice any material to suggest that when the gold in question was disposed of by the department, it already had an intimation of the petitioner s pending appeal before the CESTAT. No procedure for disposal of such confiscated goods has been brought to our notice by either side. When thus, upon expiry of the period of limitation for filing appeal agai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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