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2018 (8) TMI 967 - HC - CustomsConfiscation - Gold - stand taken by the first respondent was that the articles were confiscated not from the petitioner but from the second respondent/Southern Gold Pvt.Ltd., and that only they would be allowed to obtain release of the gold on payment of the redemption fine - Held that - It is deemed appropriate to order this writ petition leaving liberty to the petitioner to approach the competent Authority for release of the gold on payment of the entire dues, including statutory dues, as is applicable to the gold of the extent of 4346.890 gms., that has been confiscated through Ext.P4 order - petition disposed off.
Issues:
1. Confiscation of gold by Customs Commissioner and refusal to release it. 2. Alteration of factual position during the writ petition. 3. Modification of the order of release by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). 4. Maintainability of a writ against the CESTAT order. 5. Transfer of liabilities of duty and penalty to the petitioner if gold is released. Issue 1: Confiscation of gold by Customs Commissioner and refusal to release it: The initial factual position involved the confiscation of gold weighing 4346.890 gms. by the Customs Commissioner, which was refused to be released to the petitioner. The Commissioner stated that the gold was confiscated from Southern Gold Pvt. Ltd. and only they could obtain its release by paying the redemption fine. Issue 2: Alteration of factual position during the writ petition: During the pendency of the writ petition, a significant change occurred in the factual position. A statement was submitted by the Commissioner of Customs indicating a shift in the stance, stating that the gold could now be released to the petitioner upon full payment of dues, including statutory dues, without prejudice to legal contentions. Issue 3: Modification of the CESTAT order: The petitioner sought modification of the CESTAT order regarding the release of the confiscated gold. They requested the release on the same conditions offered to Southern Gold Pvt. Ltd., without the imposition of a bank guarantee of ?1 crore as initially ordered. Issue 4: Maintainability of a writ against the CESTAT order: The respondent argued that a writ was not maintainable against the CESTAT order, citing Section 130 of the Customs Act, which provides for an appeal to the High Court in cases involving substantial questions of law. The respondent contended that when an appeal is filed, it should be heard by a bench of not less than two judges. Issue 5: Transfer of liabilities of duty and penalty if gold is released: The petitioner requested that if the gold is released to them, the liabilities of duty and penalty imposed on Southern Gold Pvt. Ltd. should be transferred to them. This transfer of liabilities was proposed to ensure that the department could recover the outstanding amount from Southern Gold Pvt. Ltd. In the final judgment, the court ordered the writ petition to be allowed, granting the petitioner the liberty to approach the competent authority for the release of the gold upon payment of all dues, including statutory dues. The court clarified that this order did not affect the petitioner's right to pursue the appeal filed before the CESTAT against the initial confiscation order.
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