TMI Blog2008 (12) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... Ramesh Purwani and Brijesh Pathak, for the petitioner. S/Shri R. V. Desai, Sr. Advocate with Pradeep Jetly, for the respondents. [Judgment per : J. P. Devadhar, J.(Oral)]. - During the pendency of an appeal filedagainst 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 mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority. 6. Mr. S.N. Kantawala, learned counsel appearing on behalf of the petitioner submitted that the order in 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. Commr. of Cus. C. Ex., New Delhi reported in 2002(143) E.L.T. 60 (Del.), Collector of Customs, Madras v. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount 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. 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 authoriti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner 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 ready to pay the balance amount of Rs. 2,16,724/-, but the petitioner was not available cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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