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Judgment
The Honourable Mr. Justice Vinod K. Sharma
The Commissioner of Customs has approached this Court with a prayer for issuance of a Writ in the nature of Certiorari, to quash the order passed in Revision.
The impugned order reads as under This Revision Application is filed by the Commissioner of Customs, Trichy against the order-in-appeal No. 8 of 2004-Trichy(Customs)/ADK, dated31.5.2005,passedby the Commissioner of Customs and Central Excise(Appeals), Tiruchirappalli.
2.1. Govt notes that the issue has already been decided vide Revisionary order No. 58 of 2005, dated 24.02.2005, in respect of the Revision Application No. 373/114/B/2004-Ra of Shri.A Shahul Hameed. Hence Govt.,feels that no further order can be passed in this matter.
The Revision Application is accordingly disposed of.
The facts leading to the filing of this Writ Petition are that:
1). Shri. A. Sahul Hameed came to India from Sharjah on 25.04.2003. He was intercepted on the basis of the Intelligence Report and his luggage was searched.
2). Shri. Sahul Hameed declared the value of goods carried by him as Rs. 2 lakhs(Rupees two lakhs only), but on detail examination of the luggage, it was found that he was carrying 75 Samsung N.500 Cell Phones, 75 Samsung N-620 Cell Phones, T25 Samsung Rule 220 Cell Phones totally valued at Rs. 14,40,000/- (Rupees Fourteen lakhs and fourty thousand only).
3). The goods being of commercial quantity were seized by the Customs Officers for further action.
4). Thiru.Sahul Hameed during enquiry admitted that he was a trader in foreign goods, and that he mis-declared the value to evade duty. The Joint Commissioner of Customs vide order dated 30.10.2003, ordered confiscation of the goods, and also imposed penalty of Rs. 1,25,000/- (Rupees one lakh and twenty five thousand only). Thiru.Sahul Hameed preferred an appeal against the order. Before the Commissioner of Customs and Central Excise(Appeals), the order was upheld in appeal.
Being aggrieved there from, Thiru.Sahul Hameed preferred revision before the Government of India. Vide Order dated 24.02.2005, the Government of India in exercise of revisional jurisdiction ordered the release of goods on redemption amount of Rs. 3 lakhs(Rupees three lakhs only) and permitted the goods to be re-exported. However, the penalty of Rs. 1.25 lakhs(Rupees one lakh and twenty five thousand Only) was upheld.
In execution of the order, the Deputy Commissioner of Customs, Trichy ordered refund of Rs. 3,22,383/- (Rupees three lakhs twenty two thousand and three hundred and eighty three only) to the Petitioner, in view of the fact that during the adjudication proceedings, the confiscated goods were sold for a sum of Rs. 11,21,075/- (Rupees Eleven lakhs twenty one thousand and seventy five only). The goods were sold u/s 110 (ia) and (ib).This for the reason that the Deputy Commissioner also claimed customs duty of Rs. 3,73,892/- (Rupees Three lakhs seventy three thousand eight hundred and ninety two only) in addition to redemption charges and penalty.
The learned appellate authority, modified the order, by holding that the goods could not be confiscated, as those were ordered to be released on payment of redemption charges and fine, for re-export. Therefore, there was No. question of payment of customs duty. In support of this finding, the learned Appellate Authority placed reliance on the following judgements:
a. 2005 (98) ECC 670 (Tri) M.V. Marketing and Supplies v. C.C. Chennai.
customs duty can be demanded only when the goods are cleared for home consumption and not when they are permitted to be re-exported.
b. 2005 (99) ECC 568 (Tri.) Aswani Kumar Jain v. C.G. Meerut.
c. 2004 (95) ECC 468 (Tri.) Mahalakshmi international v. CC Jaipur.
d. 2004 (91) ECC 39 (Tri) Vikas Chandra v. C.C. Chennai.
When the goods are not available for confiscation, the same cannot be confiscated and redemption tine cannot be imposed in respect of those goods.
e. 2001 (73) ECC 81 (Tri) Sri Ratan Kr. Saha.v. C.G. Calcutta
If the good scan not be returned, market value of the good sat time of seizure should be returned.
f. 2004 (96) ECC 209 .
If the good scan not be returned, disposal price plus 6% interest should be returned.
The learned Appellate Authority accordingly accepted the appeal partly. Operative part of order reads as under:
In the impugned order the Lower Authority mentions Rs. 11,21,075/- as the entire sale proceeds of the impugned goods seized from the Appellants. This sale proceed is inclusive of duty as the cell-phones seized and confiscated from the Appellant got mingled with the mass consequent on the sale by the Department. As ordered by the Joint Secretary to the Government of India in its Revision Order, the entire sale proceeds of the impugned goods are ordered to be released as the goods were already sold on payment of Redemption fine of Rs. 3 lakhs and personal penalty of Rs. 1.25 lakhs.In short, the Appellant has to pay a redemption fine of Rs. 3 lakhs and a penalty of Rs. 1.25 lakhs. Rest of the balance viz. Rs. 3,73,692/- (ie., sale proceeds Rs. 11,21,075 Minus Rs. 7,47,383/- (Redemption Fine Rs. 3,00,000/- +Penalty Rs. 1,25,000/- + Refund already paid Rs. 3,22,383/)= Rs. 3,73,692/- ) is to be refunded to theAppellant.
Accordingly, the Lower Authority''s order is modified with consequential relief.
Aggrieved by this order, the Petitioner preferred a revision before the State Government, which was dismissed vide the impugned order
The Learned Counsel for the Petitioner vehemently contended, that the impugned order of the Government acting as Revisional authority cannot be sustained, as it does not answer the contentions raised by the Petitioner and it is a non-speaking order.
This contention deserves to be noticed to be rejected, for the reason that the revisional authority passed an order in view of the previous order passed, on the same subject-matter which had attained finality, wherein, directions were issued, permitting the importer to redeem the goods on payment of redemption charges and penalty.
The subsequent orders passed by the authorities were in fact executory order in compliance to the revisional order. The revisional authority was right in holding that the matter stood already decided, and that the revision was not competent against the order passed in execution of the previous order.
The next contention of the Learned Counsel for the Petitioner is that the revisional authority failed to notice, that the goods were not available for redemption. This contention is again is misconceived. The order under challenge before the revisional authority, dealt with only this aspect while ordering the payment to the first Respondent, therefore, it cannot be said that the revisional authority has not considered, the question that the goods were not available for re-export.
The Learned Counsel for the Petitioner thereafter contended, that the order of the appellate authority as well as the revisional authority cannot be sustained, being contrary to Section 125 of the Customs Act, 1962, which provides that the customs duty is payable even on sale by the department.
This contention again is misconceived. A reading of Section 125 of Customs Act does not lead to this conclusion rather Section 125(2) of the Act goes against the stand taken by the Petitioner.
The order passed by the appellate authority is in consonance with the settled law, that after the payment of redemption charges, penalty, balance sale proceeding, should have paid to the importer, ie., what has been done by the appellate authority and upheld by the revisional authority.
For the reasons stated, finding No. merits, the writ Petition is ordered to be dismissed. The Petitioner is directed to release the amount due to the Respondent No. 1 under the impugned orders, within one month of receipt of certified copy of this order. In case the payment is not released within one month, the Petitioner shall be entitled to interest @ 6% p.a. on this amount due from the date of order of appellate authority till realisation, but in case the payment is made within one month as stipulated then Respondent No. 1 shall not be entitled to any interest as operation of impugned order was stayed by this Court.
No. costs.