2016 (9) TMI 359 - HC - Customs

Implementation of the order as passed by Commissioner (Appeals-I) and Release of gold chain - absolute confiscation of gold jewel - Commissioner (Appeals-I) held that the petitioner is entitled to the option of redemption under Section 125 of the Customs Act, 1962. However, while giving the option of redemption, the Commissioner (Appeals-I) passed a conditional order by virtue of which the petitioner had to pay a fine of ₹ 90,000/- and pay personal penalty of ₹ 25,000/- order not followed after lapse of several months - Held that - as long as the order passed by the Commissioner (Appeals-I) has not been modified, the petitioner being beneficiary of the said order is entitled to get back the jewel on compliance of the conditions imposed by the Appellate Authority within reasonable time. The order was passed by the Commissioner (Appeals-I) on 28.09.2015 and inspite of lapse of several months, till date nothing worthwhile has transpired in the review application. That apart, there is no interim order staying the order passed by the Commissioner (Appeals) - fourth respondent to return the jewel in question subject to the petitioner paying the fine and personal penalty as ordered by the Commissioner (Appeals-I) and executing a bond to produce the jewel back to the Department, in the event, the revision petition filed by the department before the revisional authority is allowed - petition dispose off - decided in favor of petitioner.

Summary

Issues:
1. Issuance of Writ of Mandamus for release of Gold Chain
2. Pending representation to first respondent
3. Department's non-acceptance of Order-in-Appeal
4. Compliance with conditions imposed by the Appellate Authority

Analysis:
1. The petitioner filed a Writ Petition seeking a Writ of Mandamus to direct the respondents to release a Gold Chain weighing 119 grams. This petition was in response to an order of absolute confiscation of the Gold jewel by the Deputy / Assistant Commissioner of Customs, which was later reviewed by the Commissioner of Customs (Appeals-I) on 28.09.2015. The Appellate Authority found that the petitioner did not conceal the gold jewel and had no previous cases against him, leading to the decision that absolute confiscation was not warranted. Instead, the petitioner was given the option of redemption under Section 125 of the Customs Act, 1962, with a fine of ?90,000 and a personal penalty of ?25,000. The petitioner sought implementation of this order for the release of the gold chain.

2. The petitioner's representation to the first respondent had been pending since December 2015 without any response, prompting the petitioner to approach the Court for relief. Despite a counter affidavit filed by the Assistant Commissioner of Customs stating that a Revision Application had been filed challenging the Order-in-Appeal, the Court emphasized that until the order passed by the Commissioner (Appeals-I) was modified, the petitioner was entitled to the return of the jewel upon compliance with the conditions set by the Appellate Authority. As there was no stay on the order, the Court directed the fourth respondent to return the jewel to the petitioner within three weeks upon payment of the fine and personal penalty, along with executing a bond to produce the jewel back to the Department if the revision petition by the department was allowed.

3. The Court's decision was based on the fact that despite the lapse of several months since the order was issued, there had been no significant progress in the review application, and the absence of an interim stay on the Appellate Authority's order meant that the petitioner should benefit from the favorable decision until it was lawfully altered. Therefore, the Court disposed of the Writ Petition by instructing the return of the jewel to the petitioner, subject to the specified conditions, and closed the connected miscellaneous petition without imposing any costs on the parties involved.