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TMI Blog2017 (5) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... House, KG Marg, New Delhi. It had filed Bill of Entry No.7687005 dated 17.08.2012 through CHA, M/s Kinship Agency (P) Ltd. for clearance of consignment - "Transmitter Broadcasting Equipment Sub-System (Data processing unit with transmitting capabilities for Broadcasting), Software and other Standard Accessories" (hereafter "the imported articles"). The assessable value of the goods was declared at Rs. 51,70,619/- and it was submitted by the petitioner, that import under this heading was free as in terms of the policy and no WPC license is required. 3. The articles were imported under Commercial Invoice No.2012-0730 dated 1 August, 2012. Upon arrival in India, the goods were examined under First Check to ascertain the correct nature of the goods. The quantity was found to be compliant with the Invoice and packing list. The Petitioner, had, under cover of its letter submitted to the Assistant Commissioner (Customs), the following information/documents: (a) Various Modes of Operations; (b) An overview of the working; (c) Platform Overview; (d) Technical Specification Date Sheet; (e) Features and Advantages. 4. The petitioner had upon being queried by the customs authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s dated 28.01.2014, 12.02.2014, 24.04.2014, 24.05.2014, 10.07.2014, 20.08.2014, 09.09.2014, made requests for the refund of cost of the goods so declared at the time of import i.e., Rs. 51,70,619/- along with interest. However, the respondent did not respond to any of the petitioner's requests. The petitioner, aggrieved by such inaction and left with no alternative; has approached this court by way of the present petition to direct the respondents to grant the refund amount to it along with interest. 7. The Petitioner contends that it succeeded before the CESTAT, and that its order has neither been stayed nor set aside by this court or the Supreme Court, which obliges the respondent to restitute the full value of the imported articles, less the duty payable, and make payment of the auction amount along with interest. The respondents' inaction is contrary to the settled position of law declared by the Supreme Court and the various High Courts. The petitioner relies on Northern Plastic Ltd. v. Collector of Customs and Central Excise, 1999 (113) ELT 3 (S.C.), Kailash Ribbon Factory Ltd. v. The Commissioner of Customs & Central Excise and Anr., 2002 (143) ELT 60 (Del.); Shilp Impex v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired to ensure safe custody of the goods, if they are pilfered while in custody, it is he who must bear the duty on such goods. 11. In the present case, on enquiry from the custodian, the Customs contends that due notice of intent to sell the property was sent to the petitioner by legal notices dated, 28.09.2012 and 07.11.2012 at the address "M/s Dejero Logix Pvt. Ltd., 79 Shyam Lal Road Darya Ganj, New Delhi", which elicited no response. Thereafter on the same address, notices for personal hearings were sent to the petitioner on the same address which they duly responded to and attended the personal hearings. 12. Counsel for Customs submitted that the goods were ordered for confiscation after due consideration of the catalogue/ user manual of the goods and it was found that goods under import are live + transmitter type for live television broadcasting and can work on cellular frequency, Ethernet and WiFi connections. It was contended that the articles were not merely broadcasting equipment subsystem as declared by the importer but was complete equipment in itself. Thus, there was a requirement for the petitioner to produce a licence issued by the WPC, Ministry of Telecommunic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d goods were auctioned in a clandestine manner by the respondents. The respondents are obviously under an obligation to compensate the petitioner for the grave loss which has been caused to him... 8. We are of the considered opinion that during the pendency of the appeal confiscated goods could not have been auctioned without prior permission of the appellate court... 10. After obtaining necessary permission if the authorities decide to auction the goods, the individual notice is imperative. We are clearly of the opinion that the respondent have committed a serious blunder by auctioning the goods which were subject matter of appeal without prior permission of the concerned appellate court. The petitioner has to be compensated for this serious lapse of the respondents causing immense financial loss to the petitioner..." 16. The respondents' contentions are that the goods could not be held by the Custodian for an indefinite period; advertisement for sale was given due publicity. Had the petitioner wished, it could have either cleared the goods, or later, participated in the auction. Their actions, according to them, are in consonance with provisions of the Customs Act. 17. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of duty, in January 1989, was Rs. 33.04 lakhs only then the applicant, and for that matter any sensible person, would not have imported the goods at all. It would be reasonable to presume that an importer would have imported the goods of the value of Rs. 33.04 lakhs if its value in the Indian market at the relevant time was more than the CIS value of the goods plus the duty payable thereon (Rs. 33.04 lakhs + 47.07 lakhs = Rs. 81.11 lakhs). It is also not the stand of the respondent that such goods were available in the Indian market at that time at a lesser price. Therefore, it is now the obligation of the respondent to return at least Rs. 80.11 lakhs - 47.07 lakhs, the amount of duty payable thereon. As the applicant has been deprived of the use of the goods worth Rs. 33.04 lakhs the respondent is under a legal obligation now to refund that amount to the applicant. The respondent 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 that price only. We also cannot accept the contention of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the value of the goods at the time of seizure i.e., Rs. 51,70,619/- and not the amount for which the respondent sold the petitioner's goods for i.e., Rs. 81,000/-. Furthermore Circular No.711/4/2006-Cus (AS) dated 14.02.2006 mandates the customs authorities to give due notice of sale to the petitioner before making the auction and states, "...that the requirement to issue notice to the owner of the goods shall also obtain in case of goods that have been confiscated but in respect of which all appeal/ legal remedies have not been exhausted by the owner of the goods.". 21. In the case of Rang Birajgi Sarees (P) Ltd. v. Additional Commissioner of Customs, 2011 (265) ELT 26 (Cal.), the court, with respect to the aforementioned circular, stated that, "...Circular No. 711/4/2006-Cus (AS) dated 14.02.2006 the authorities are to be reminded that law interpreted and laid down is for strict compliance and circulars issued by the authorities themselves are for adherence in letter and spirit." From the above cited judgments and the custom circular, it is clear that in any case, the petitioner was to be given notice by the customs authority before proceeding for selling the goods or even for g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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