Joint Secretary, Ministry of Finance and Others vs Rama Subba Reddy Arava

M.M. Sundresh, J.—These writ appeals have been preferred by the appellants challenging the common order of the learned single judge See Rama Subba Reddy Arava v. Joint Secretary, Ministry of Finance [2013] 20 GSTR 203 (Mad). by which a direction was issued to the appellant to make the payment of Rs. 2,42,500, with interest at nine percent, per annum, after deducting the penalty and fine of a sum of Rs. 5,000 and Rs. 15,000, respectively. The respondent herein was detained having been found in possession of five gold biscuits on November 25, 1996. Gold weighing 582.8 grams was seized under mahazar, by an order, dated December 9, 1996. The gold biscuits were confiscated and a penalty of Rs. 5,000 was imposed on the respondent. An appeal was filed by him before the Commissioner of Appeals. The Commissioner of Appeals in and by the order, dated August 28, 1997, was pleased to allow the appeal, permitting the respondent to redeem the confiscated gold on payment of fine of Rs. 15,000 apart from the penalty of Rs. 5,000. However, being aggrieved by the order of the Commissioner of Appeals, the Department had preferred a revision. The revisional authority, in and by an order, dated March 11, 1998, was pleased to allow the revision by setting aside the order passed in appeal. Accordingly, the original order passed by the Additional Commissioner of Customs, dated December 9, 1996, was restored. The respondent filed a writ petition before this court. This court in W.P. No. 9976 of 1998, in and by the order, dated July 13, 2006, remitted the matter to the first appellant for fresh consideration. The final orders were passed on October 11, 2006 by the first appellant. The first appellant took a lenient view and taking note of the liberalised policy pertaining to the import of gold, an option was given u/s 125 of the Customs Act, 1962, to the respondent to redeem the gold as per the order of the Commissioner of Appeals. The said order had been passed while confirming the findings of the original authority. However, the appellants sold the gold in the interregnum on September 9, 1997. The said order was passed even before the order passed by appellant No. 1, on March 11, 1998, in the earlier occasion. Instead of complying with the order of appellant No. 1, out of the sale proceeds of Rs. 2,62,500 a deduction of a sum of Rs. 1,65,408 has been deducted towards the customs duty, apart from the penalty and fine payable by the respondent. Thereafter, the respondent has come before this court challenging the order of appellant No. 3, dated September 12, 2007. Consequently, the respondent has also challenged the order of appellant No. 2, dated October 11, 2006. The learned single judge has passed an order directing the appellants to pay a sum of Rs. 2,42,500 after deducting the penalty and fine amount of Rs. 15,000 and Rs. 5,000, respectively. Challenging the same the present writ appeal has been filed.

The learned counsel appearing for the appellants would submit that in law, the respondent is duty bound to pay the customs duty payable. While passing orders the first appellant had confirmed the findings of the original authority. The order was passed only as a concession and therefore, the respondent is bound to pay the customs duty, apart from the fine and penalty.

Per contra, the learned counsel appearing on behalf of the respondent would submit that it is an unfortunate case, wherein, even before the revision was allowed and during its pendency the appellants have sold the gold without any authority. The appellants committed a serious error in effecting the sale. In view of the action of the appellants the respondent has been put into severe financial constraints. The question of payment of customs duty was never an issue in all the proceedings. Only for the first time it has been raised and without even affording an opportunity the said amount is sought to be deducted. The learned single judge has considered the entire materials available on record and came to the right conclusion. In support of the above, the learned counsel has made reliance on the following decision:

Shabir Ahmed Abdul Rehman Vs. The Union of India (UOI) and Others,

The facts narrated are not in dispute. Admittedly, the gold has been sold when the order passed by the Commissioner of Appeals in favour of the respondent, dated August 28, 1997 was in force. Merely because a revision is pending the appellants ought not to have sold the gold. Be that as it may, the issue regarding the deduction towards the customs duty does not arise for consideration. Admittedly, the respondent has not been furnished with the gold. Therefore, there is no question of imposing the customs duty on the said respondent. Furthermore, the said plea has never been taken in any of the proceedings by the appellants. Considering the very same issue against the respondents, the Division Bench of the Bombay High Court in W.P. No. 2488 of 1998, dated December 3, 2008, in Shabir Ahmed Abdul Rehman Vs. The Union of India (UOI) and Others, has held as follows: 11. The question then to be considered is, whether the petitioner 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.

Taking into consideration the facts and circumstances of the case and applying the ratio laid down by the Division Bench of the Bombay High Court in which the first appellant was one of the parties, we do not find any reason to interfere with the order of the learned single judge as admittedly, the gold belonging to the respondent has been sold by the appellants and what is sought to be given is only the cash. In such view of the matter, we do not find any error in the order of the learned single judge. Accordingly, they are dismissed. No costs.