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TMI Blog2013 (6) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... posed of. CWP No.10750 of 2012 The petitioners have approached this Court by way of present writ petition filed under Articles 226/227 of the Constitution of India wherein following prayers have been made: "(i) Writ of Certiorari quashing the Panchnama dated 30.04.2012 (Annexure P-8) and dated 01.05.2012 (Annexure P-9) whereby the respondent has detained two containers of the petitioners lying at Inland Container Depot, New Delhi and direct the respondent to permit export thereof; (ii) Writ of mandamus directing the respondent to return a sum of Rs.10.00 Crores illegally recovered from the petitioners; (iii) Direct the respondent to return passport of Managing Director of the petitioners and record of the petitioners; (iv) Not to take any coercive action against Directors of the petitioners during investigation; (v) Direct CBI enquiry into the above incidents; and (vi) Petitioners be exempted from filing certified copies of the Annexures, permitted to file photocopy/computer printout of Annexures in font and size as enclosed; (vii) Pass such or similar order as deem fit in the peculiar facts and circumstances of the case; It is further prayed that during the pendency of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners along with interest at the rate of 9% per annum from the date of deposit till the date of its return. The needful must be done within three months from the date of receipt of a copy of this order." Reference was also made to Paras 11 to 13 in M/s Century Metal Recycling Pvt. Ltd. versus Union of India 2009(234) ELT 234 (P & H), which reads thus:- "11. The questions for consideration are whether the search and seizure was called for, whether the petitioners were entitled to refund of the amount deposited and whether the conditions for provisional release of seized goods are valid. 12. Since the matter is under investigation, which respondents have undertaken to conclude within one month, we do not consider it necessary to express any opinion at this stage on the validity or otherwise of search and seizure. 13. As far as the amount deposited by the petitioners is concerned, case of the petitioners is that the same was deposited under coercion. Case of the respondents was that the same was deposited voluntarily. Whatever be the position, unless there is assessment and demand, the amount deposited by the petitioners cannot be appropriated. No justification has been shown for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement on behalf of his wife and his wife shall be bound by the statement made by him. It was further submitted that in order to safeguard the interest of the revenue, petitioner No.3 has agreed for retaining of an amount of Rs.2 Crores by the revenue till the finalization of the proceedings in pursuance to show cause notice issued by the revenue in which only a liability of approximately Rs.50 lacs could be fastened. It was also accepted that immovable property of plot valuing approximately Rs.3 Crores belonging to the wife of petitioner No.3 which is free from all encumbrances as on date, would also not be alienated or any encumbrance would be created by the petitioners for a period of one year, during which, a direction may be issued to the respondents to conclude all proceedings in respect of on going investigations, if any, or show cause notice which has been issued. 8. In view of the above, it is directed that the plot in respect of which Sh. Rajesh Dhanda, husband of Smt. Seema Dhanda has made a statement, no encurmbrance shall be created or the aforesaid property shall not be alienated for a period of one year i.e. till 31st March, 2014 or till the finalization of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a refund of money, to the return of which the petitioners claims a right. The aggrieved party seeking refund has to approach the civil court for claiming the amount though the High Courts have the power to pass appropriate orders in the exercise of the power conferred under Article 226 for payment of money. (vide Suganmal v. State of M.P.). (iv) There is a distinction between cases where a claimant approaches the High Court seeking the relief of obtaining only refund and those where refund is sought as a consequential relief after striking down the order of assessment, etc. While a petition praying for mere issue of a writ of mandamus to the State to refund the money alleged to have been illegally collected is not ordinarily maintainable, if the allegation is that the assessment was without a jurisdiction and the taxes collected was without authority of law and therefore the respondents had no authority to retain the money collected without any authority of law, the High Court has the power to direct refund in a writ petition. (Vide Salonah Tea Co. Ltd. v. Supdt. of Taxes). (v) It is one thing to say that the High Court has no power under Article 226 of the Constitution to is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, learned counsel for the revenue candidly admitted that there is no such provision to retain the amount except to refer to Section 42 of the Customs Act, 1962. Further, on a query as to whether any order requiring the petitioners to refund the duty draw back as canvassed by the revenue had been passed, learned counsel for the revenue was unable to show that there existed any such order or authorization from any competent authority. It was only urged that it was a disputed question of fact as to whether the amount was deposited voluntarily or under coercion. Be that as it may, whatever be the situation, the revenue cannot retain any amount to which it is legally not entitled to as the same would be violative of Article 265 of the Constitution of India. 14. In view of the above, while disposing of this petition, we direct the revenue to retain an amount of Rs.2 Crores to safeguard its interest for being adjusted against any liability that might be created on the basis of investigations and/or show cause notice issued to the petitioners and return the balance amount of Rs.8 Crores within a period of two weeks from the date of receipt of certified copy of the order. Needless to say ..... X X X X Extracts X X X X X X X X Extracts X X X X
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