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TMI Blog2020 (11) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... pondents could not show any such document or evidence that they have availed of the remedy provided under the Customs Act. The Customs Act which being a special Act has provided remedial action against the orders of the authorities and which the plaintiffs failed to have recourse to and therefore, having failed to exhaust the departmental remedies provided under the Act, the plaintiffs to the mind of this Court cannot have resort to general provisions by way of filing civil suit seeking mandatory injunction. More so, even in the suit the plaintiffs have not challenged the letter dated 25-2-1986 by which the Collector, Central Excise and Customs disallowed clearance of the goods, therefore, by resorting to such a suit the plaintiffs cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Advocate for Amit Goyal, Senior Standing Counsel, for the Appellant. Shri O.P. Goyal, Senior Advocate with Ms. Lavish and Sanjeev K. Sharma, Advocates, for the Respondent. ORDER Then plaintiff, M/s. Tuli Tops filed against Union of India and others including the Assistant Collector, Central Excise and Customs (then defendants) a suit seeking decree of mandatory injunction directing the defendants to deliver 58 bales, 76 bales and 61 bales respectively of the goods amenable to customs duty detailed in the plaint. The story of the plaintiff is that the firm deals in import of white synthetic thread waste and falls under the category of small scale unit, and alleged that the defendants refused to make delivery of the goods to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and therefore, no cause for the plaintiffs to file the suit was made out and further claiming that the goods in question were disallowed for clearance by the Collector, Central Excise and Customs in terms of Section 23 of the Customs Act and therefore, goods became property of the department and hence the Government. The Trial Court framed the following issues :- (1) Whether the plaintiff surrendered the goods under Section 23(2) of the Customs Act as alleged? OPD (2) Whether the plaintiff is entitled to the mandatory injunction prayed for? OPP (3) Whether this Court has no jurisdiction to try this suit? OPD (4) Whether the suit is not competent without notice u/s. 80 CPC? OPD (5) Whether the suit is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent and perusing the records of the case. 6. It is the own admitted stand of the plaintiffs that on account of increase in the ad valorem customs duty they did not exercise their option to get back the goods and have rather relinquished their right over the goods by giving a letter in writing to this effect. It is there in the stand of the defendants that the Collector, Central Excise and Customs vide his letter dated 25-2-1986 disallowed clearance of the goods on payment of duty as the title of the goods passed on to the customs department in terms of Section 23 of the Customs Act and therefore, the goods became the property of the Government on account of relinquishment of the title over the goods by the plaintiff. More so, Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce and the admitted facts and by mis-construing the truth on the records has arrived at a totally perverse and illegal finding purely on the grounds that the act of the department for not supplying the orders was mala fide and that is how the decision stood reversed. More so, the plaintiff had admittedly filed writ petition challenging the enhancement of the ad valorem customs duty but nothing has been placed on record as to the fate of the said writ petition though accepted in arguments to have been withdrawn and therefore, by simple analogy the department is supposed to levy the customs duty as per the notification of the Government and the plaintiff is bound to pay the same. 8. Since the plaintiffs have initially surrendered their ri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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