TMI Blog1998 (9) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... id Notification, an eligible passenger is entitled to import 100 kgs of silver, if he is a passenger of Indian origin or a passenger holding a valid permit issued under the provisions of the Passports Act, 1967 (Act 15 of 1967) and coming to India after a period of not less than six months. The said eligible passenger can bring silver with him or he can import the same as unaccompanied baggage within fifteen days of his arrival in India. Apart from this, the eligible passenger has to pay the duty by way of foreign currency. 4.In these cases, the petitioners stayed abroad for more than six months and during their short visits to India, each of the petitioners imported a quantity of 99 and odd kgs of silver. They paid necessary duties by way of foreign currency and also got clearance from the Customs Authorities. The Customs Authorities also made an endorsement "out of Customs charge". Subsequent to this, the respondents have not released silver to the petitioners. Hence the present writ petitions. 5.The respondents have filed a counter affidavit in W.P. Nos. 14431 to 14434 of 1996 and another common counter affidavit in W.P. Nos. 17547, 17787, 17549 and 17946 of 1996 and a separ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectively avoiding the service. Subsequently, he also retracted the statement given by him before the Superintendent, Central Excise and Customs, Preventive Unit, Pattukottai. 8.Similarly, the petitioner in W.P. No. 17562 of 1996 has also given a voluntary statement that he did not purchase the silver and he did not bring foreign currency from abroad for payment of duty, and that he had given his passport for monetary consideration of Rs. 4,000/-. Subsequently, he also retracted his statement. The summon issued for further enquiry have also been returned with the endorsement "absent" or "no such addressee" or "refused" or "unclaimed". 9.The petitioner in W.P. No. 17946 of 1996 also gave the statement that he had no objection for confiscation of silver and he did not know anything about the import of silver in his name. The summons sent to him returned undelivered with the postal endorsement "no such addressee". 10.So far as the petitioner in W.P. No. 17787 of 1996 is concerned, the enquiry reveals that he is absconding and the first two summons sent to him were returned with an endorsement "no such addressee." In the affidavit filed by him before this Court, he has given the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... import of silver also, as there cannot be two yard sticks for two different notifications, when the purpose of the notification is one and the same. 14.When once the Customs Authorities are satisfied with the import of silver in accordance with the Notification 172/94 and having collected the duty and cleared the same, it is not open to them to detain the goods for further verification. Even if further verification is necessary, it is their duty to release the goods i.e. silver and thereafter can proceed with the further investigation and hence the detention of silver in all these cases is illegal and the relief sought for has to be granted to all the petitioners. 15.Mr. N.R. Chandran, learned Additional Solicitor General on behalf of the respondents contended that because of certain malpractices adopted by the traders in smuggling the silver taking advantage of Notification No. 172/94, the goods have been detained. As stated in the counter affidavit, it has been noticed in some of the cases that the eligible passenger is not the owner of the silver and he has not imported the silver. Further the import duty which has been paid by way of foreign currency has not been brought by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conditions of stay abroad and those relating to payment of duty in foreign exchange. On the same principle, the petitioners herein are entitled for the benefit of the release of silver. It is not open to the officials of the same department to take different stand before different High Courts. The judgment of the Bombay High Court would clearly establish what is the intention of the Gold/Silver Imports Scheme and as such, if the three conditions contemplated under the scheme are satisfied, then the authorities are bound to release gold/silver as the case may be. 20.The learned Senior Counsel further relied upon some of the judgments in order to interpret the Notifications and I am of the view that those judgments are not necessary to be discussed in view of the facts of this case. 21.Mr. N.R. Chandran, learned Additional Solicitor General, however, contended that the judgment of the Bombay High Court cited by the learned Senior Counsel for the petitioners cannot be a precedent which this Court can follow. Admittedly, in that case, the Counsel for the respondents had conceded. Even though such a concession has been made on instructions of the departmental officials, still the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulations Act and also COFEPOSA. If any such illegality is involved in the transactions, naturally it is not open to the authorities to release the goods without completion of the proceedings and without ascertaining the nature of transactions. 26.As rightly pointed out by the respondents in their counter affidavits, if, after the adjudication proceedings, it is found that the petitioners have paid the duty by themselves from out of the foreign currency brought by them on their return to India or at least on their showing that they obtained foreign currency from the authorised persons, then ultimately, the goods will be released. On the other hand, if it is otherwise in view of the illegal nature of the transaction, the authorities are bound to proceed and take further appropriate action and pass final orders depending upon the nature of offence brought out in the enquiry. 27.None of the petitioners have stated that they paid the duty from out of the foreign currency they brought with them on their return to India. Hence, on this question, I am of the view that the adjudication proceedings initiated by the respondent officials are quite proper. 28.The learned Senior Counsel on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty is paid and the respondents having received the same, they are bound to release the goods as a matter of course and after giving the clearance they have no power or authority to retain the same. 31.As pointed out already, even if the petitioners need not establish the source for the purchase of silver, they are bound to establish the source for the payment of duty. The respondents have initiated proceedings mainly on the ground that the duty has been paid in foreign currency procured locally which attracts the provisions of the Foreign Exchange Regulations Act and it is open to the authorities to adjudicate the matter. 32.From the counter, it is very clear that the petitioners herein are evading the service of summons in the adjudication. The petitioners' contention is that they are not aware about the adjudication proceedings. The respondents' contnetion on the contrary, is that after initiation of the adjudication proceedings, these writ petitions have been filed and in some of the cases, after receipt of the show cause notice. To avoid any complicity, I am of the view that the petitioners should participate in the adjudication proceedings. Hence, the petitioners or their ..... X X X X Extracts X X X X X X X X Extracts X X X X
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