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TMI Blog2006 (7) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... e reply to the show-cause notice the adjudicating authority passed a reasoned order dated November 24, 1999 appearing at pages 29-50 of the paper book. The authority came to conclusion that the department failed to prove that the betel nuts seized by the department were of foreign origin and thus directed release of the goods or payment of the sale proceeds in case goods were sold in auction. The relevant paragraph of the order of the adjudicating authority is quoted below :- "I order unconditional release of 33320 kgs. betel nuts valued at Rs. 47,95,200/- seized in the seizure case No. 13/IMP/CL/CUS/SLG/DPU/99, dated 7-2-99, in favour of Shri Ratan Lal Jain and Shri Vijoy Kumar Jain of Dhupguri, Jalpaiguri. In case the goods have already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 545. The paragraph relied upon by His Lordship is quoted below :- "........cannot now be permitted to take the advantage of his own wrong and contend that the value of the goods should be determined only at Rs. 48.50 lakhs inclusive of its value and the amount of duty payable thereon because they could be sold at the price only. We also cannot accept the contention of the learned counsel for the respondent that if the applicant has suffered any loss as a result of the wrongful act of the respondent then he should file an action in tort and this court cannot order payment of any amount in these applications. No doubt it would be open to the applicant to initiate such an action if it feels that the loss suffered by it is more than Rs. 33. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ury, learned Counsel appearing for the writ petitioner/respondent, on the other hand, contends that it was the duty of the customs authority to sell the confiscated goods by public auction and that too upon giving proper notice to the owner of the goods. In the instant case, neither any notice was given to him nor any public auction was held. The department failed to disclose any document in support of their case. Mr. Chowdhury has further relied upon a Division Bench decision of the Delhi High Court in the case of Kailash Ribbon Factory Ltd. v. Commr. of Cus. C. Ex., New Delhi reported in 2002 (143) E.L.T. 60 (Del.). 9.We have perused the Division Bench decision of the Delhi High Court. Their Lordships relied upon the decision in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty would not exceed the duty sought to be evaded or 5,000/- whichever is greater. 12.Applying the law as discussed above in the instant case, we are of the view that once the goods were seized it was the duty of the authority to come to a definite conclusion that the goods were liable for confiscation under the Customs Act meaning thereby either the goods were prohibited goods or the goods were liable to customs duty. Show-cause notice was appropriately given. Since the goods were perishable in nature the authority was entitled to sell the goods. However, they should have adopted the procedure laid down in the Act itself and the rules made thereunder. In the instant case, the authority found that the department failed to prove that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms authority through the sale is a question which need to be gone into by an appropriate forum. 14.Sitting in writ Court it was not possible for the learned single Judge or for us in this appeal being the continuation of the writ proceeding to find out what was the actual value of the goods. The writ Court, in our view, does not have such expertise to assess the value of the goods. In the case of Kailash Ribbon we are deprived of the relevant particulars as to how the sale was conducted or how the value was arrived at as the detailed order of the adjudicating authority in that case is not before us. At the same time, we cannot allow the customs authority to make an unjust enrichment for a wrong they committed seizing the articles and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble interest bearing fixed deposit to be kept renewed from time to time subject to further order to be passed by the civil court. Such fixed deposit must be made within a period of two months from date. 18.The writ petitioner/respondent would be at liberty to approach the civil court pressing his claim on account of difference of the price. The civil court would be free to decide the issue in accordance with law. 19. In case such suit is filed within a period of three months from date, the writ petitioner/respondent would be entitled to take the benefit of the Section 14 of the Limitation Act as they were sincerely pressing their claim in the writ proceeding as well as in the appeal. 20.In case such deposit is not made within the sti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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