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Judgment
D.A. Mehta, J.—This petition is taken up for final hearing and disposal today. Rule. Learned Counsel for the respondents is directed to waive service.
This petition has been preferred with the following prayers :
(A) That Your Lordships may be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, direction or order, directing the second respondent herein to return to the petitioners Bank Guarantee No. 106/06 dated 3.8.2006 and to pay interest at the rate of 12% p.a. for the amount of bank guarantee for the period from 9.6.2008 till the date when the bank guarantee is actually returned to the petitioners;
(B) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct the second respondent herein to forthwith return to the petitioners Bank Guarantee No. 106/06 dated 3.8.2006;
(C) An ex-parte ad-interim relief in terms of Para 11 (B) above may kindly be granted;
(D) Any other further relief that may be deemed fit in the facts and circumstances of the case may also please be granted.
The facts which are not in dispute are that, inclusive of the petitioners, certain other persons who were intercepted by police on 23/10/1999 were found to be carrying 551 gold bars. After various proceedings of adjudication and appeal under the provisions of the Customs Act, 1962, the petitioners succeeded before the Appellate Tribunal, Mumbai, as recored in order of 30/9/2005. Against the same, Revenue filed Tax Appeal and the said appeal came to be dismissed. Revenue carried the matter in further appeal by way of Special Leave Petitions against Order-and-Judgment of this High Court. While admitting the petitions, by way of interim direction, the Apex Court directed the Commissioner of Customs to release confiscated gold, subject to the petitioners furnishing security to the satisfaction of the Commissioner. Accordingly a Bank Guarantee to the tune of Rs. 4=00 Crores (Rs. Four Crores) was furnished and confiscated gold bars were released by the Commissioner.
On 8/3/2007 the appeals filed by Revenue were allowed by the Apex Court and the matters were remanded to the Appellate Tribunal for denovo adjudication. On 31/3/2008 Appellate Tribunal once again allowed the appeals after denovo adjudication and set aside the confiscation and the penalties levied.
On 9/6/2008 petitioners moved the Commissioner seeking return of the Bank Guarantee papers. This request was followed by communications dated 10/7/2008, 14/11/2008 and 15/12/2008. The Commissioner did not respond to the said communications and hence the present petition.
To complete the narration of the events, it is required to be noted that on 15/9/2008 Special Leave Petitions filed by Revenue against order of Tribunal dated 31/3/2008 in second round came to be rejected, on the ground that the department had an alternative statutory remedy by way of tax appeal, which should be availed of by the department. Admittedly, Revenue preferred Tax Appeals before this High Court and vide order dated 2/3/2009 the Tax Appeals have been admitted on certain substantial questions of law formulated by the High Court.
On behalf of the petitioners one Vijay Dashrathbhai Patel has tendered supplemental affidavit dated 3/3/2009 narrating as to what transpired at the time of hearing of the tax appeal to emphasize the fact that, though civil applications were filed and pressed by Revenue seeking stay of further proceedings, including implementation of order dated 31/3/2008 made by the Tribunal, the High Court has not acceded to the said applications and no orders have been made in favour of Revenue. It has also further been stated that the Bank Guarantee in question has expired and as of today the said guarantee is not in subsistence.
Heard learned advocate for the petitioners and the learned Counsel appearing for respondent authorities. Leaned counsel for the respondent authorities submitted that the petitioners may be called upon to furnish undertaking to satisfy the demand that may arise in future, if the Revenue succeeds in the tax appeals which are pending before High Court.
There is no dispute as to the fact that the Bank Guarantee tendered in compliance with an interim order made by the Apex Court in the first round of proceedings has expired and has not been re-validated. Therefore, in so far as Revenue is concerned, in effect, the papers of such Bank Guarantee are not having any value and in the circumstances Revenue is directed to part with the papers of expired Bank Guarantee and hand them over to the petitioners within a period of ten days from today, namely; on/or before 23/3/2009.
In so far as the request for calling upon the petitioners to tender an undertaking, suffice it to state that, a request of this nature would have nexus with the proceedings of pending tax appeals and would have no relevance in so far as present petition is concerned, both the sets of proceedings being independent and separate, as already recorded in order of 29/1/2009.
The petition is allowed accordingly in the aforesaid terms. Rule made absolute, with no order as to costs.