9911796707
TMI Blog2022 (12) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to pay Rs. 14,63,684 within four months and also to pay the interest at the rate of 12% per annum from the date of seizure upto the date of payment of the entire amount. It has further been directed that any loss accrued to the department of revenue may be compensated by deducting the amount of loss from the pocket of the authority due to whose mistake the public exchequer has been burden." 2. The respondent Krishna Bahadur Chhetri had filed writ application in which he has prayed for the following relief:- "That this is an application, praying for issuance of appropriate writ/order/direction to the respondent-authorities to make payment of the difference/balance amount Rs. 14,63,684 to the petitioner alongwith lawful interest accrued thereby out of assessed and admitted value of the goods at the time of seizure (Rs. 21,68,100/-) minus the sale proceeds refunded to the petitioner (Rs. 7,04,416/-) alongwith interest and for any other relief or reliefs the petitioner is entitled in the eye of law." 3. Respondent is into betel nuts trading business. He was transporting betel nuts from Siliguri to Delhi via State of Bihar. The truck was intercepted by the Customs Department of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MISSIONER OF CUSTOMS PATNA. " 5. Feeling aggrieved and dissatisfied with the order of the Commissioner dated 16.11.2000, respondent invoked remedy before the Customs, Excise and Gold (Control) Appellate Tribunal, Eastern Bench, Kolkata (for short "Tribunal"). The Tribunal set aside the order of the Commissioner dated 16.11.2000 vide order dated 31.05.2001. 6. Feeling aggrieved and dissatisfied with the order of the Tribunal, appellant - Department preferred petition vide Tax Case No. 13 of 2001 and connected matters, respondent's case is Tax Case No. 24 of 2001 and department suffered an order on 18.09.2008. Thus, Tribunal order dated 31.05.2000 has attained finality. The appellant - Department is stated to have auctioned the seized goods betel nuts at the value of Rs. 7,04,416/- as against approximate value assigned by the seizure of the goods authority at Rs. 21,68,100/- read with respondent's declaration value @ Rs. 8,59,125/- dated 13.01.1999. 7. The respondent have furnished receipts which were stood in the name of Dahal Agro Products, Proprietor Krishna Bahadur Chhetri (respondent) it is dated 19.01.1999 (Annexure - 3 series) consisting of four receipts in which quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seized betel nuts goods which was auctioned of Rs. 7,04,416/- on 30.03.1999. Auction purchaser lifted the goods on 20.04.1999. Further auctioned amount of Rs. 7,04,416/- was paid to the respondent along with interest on 16.02.2004. 11. In support of the aforesaid contentions learned senior counsel for the department relied on CWJC No. 2221 of 2005 decided on 21.05.2011 and further, LPA No. 808 of 1998 decided 27.07.2007 (Para 5 to 10). 12. Therefore, the order of the learned single Judge is liable to be set aside. It is also pointed out that learned single Judge has not appreciated the prayer in the writ application filed by the respondent. Para 2 of the order of the learned Single Judge dated 25.01.2011 is not in terms of the reliefs sought by the respondent in his writ application CWJC No. 2221 of 2005. If the respondents disown his document like declaration dated 13.01.1999 read with Annexure - 3 series, receipts documents in which proprietor is respondent - Krishna Bahadur Chhetri. The actual amount which is required to be claimed by the respondent is a sum of Rs. 8,59,125/- and not assigned by the Customs Authority which is approximate value. Assigning a sum of Rs. 21,68,100 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the auction proceedings, the petitioner cannot contend that there is a violation of Section 150 of the Customs Act. It is also submitted that learned single Judge has committed error in Para 8 that no notice was given to the respondent before auction proceedings were undertaken. 17. In this regard, he has pointed out Para 6 to 9, reply to the counter affidavit in the present LPA to the extent that notice was issued and it was undelivered. The aforesaid contention of the respondent cannot be appreciated and so also order of the learned Single Judge for the reasons that respondent has not questioned the validity of auction proceedings. 18. It is further submitted that decisions cited on behalf of the respondent has no application to the case in hand. It is submitted that in the present case the respondent himself has given declaration that the value of the goods is sum of Rs. 8,59,125/- on 13.01.1999 and auction price is Rs. 7,04,416/- whereas the cited decision is not relating to concerned trader who has given declaration and material information relating to value of the goods while comparing with the approximate value determined by the seizing authority. Therefore, the cited de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er ton with reference to marked value as on the date of seizure of the goods on 22.01.1999, therefore, the learned Single Judge should have rejected the writ petition at threshold that disputed issues cannot be decided by the writ Court. Respondent - petitioner had a remedy before the Trial Court in adjudicating the matter. 22. Apex Court in the case of Shubhas Jain vs. Rajeshwari Shivam and Others reported in 2021 SCC Online SC 562, in paragraph No. 26, it is held as under: "It is well settled that the High Court exercising its extraordinary writ jurisdiction under Article 226 of the Constitution of India, does not adjudicate hotly disputed questions of facts. It is not for the High Court to make a comparative assessment of conflicting technical reports and decide which one is acceptable." 23. In the light of the aforesaid facts and circumstances read with the principle laid down by the Apex Court, writ petition filed by the respondent - petitioner is not maintainable for the reasons that there are three materials in respect of value of the seized betel nuts namely self declaration made by the respondent dated 13.01.1999 and he had valued at Rs. 8,59,125/- and the same amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25.01.2011 has committed error in not noticing that there are disputed facts by either of the parties insofar as entitlement of refund. The learned Single Judge has not appreciated documents relating to self declaration of respondent - petitioner read with receipts dated 19.01.1999 (Annexure- 3 series.) 26. The cited decisions on behalf of the respondent like LPA 913 of 2003 decided on 25.10.2010, LPA 813 of 2011 decided on 31.08.2012, CWJC No. 10265 of 2011 decided on 02.03.2012, LPA 928 of 2012 decided on 20.07.2012 and, SLP No. 12157 of 2011 decided on 01.08.2011 are not assisting his grievance. Firstly, Courts have to examine factual aspects of the matter. In the present lis, having regard to the fact that respondent - petitioner had self declared value of the seized goods at Rs. 8,59,125/- and further it is corroborated by receipts and petitioner cannot disown his own documents and rely on approximate value assigned by the Customs Authority at the time of seizure of the goods. Value of the betel nut goods is well known to the respondent - petitioner other wise he would not have executed self declaration read with the number of receipts (Annexure - 3 series). Based on factual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under section 50. (2) Notwithstanding anything contained in sub-section (1), if the Board is satisfied that it is necessary or expedient so to do, it may, by notification in the Official Gazette, fix tariff values for any class of imported goods or export goods, having regard to the trend of value of such or like goods, and where any such tariff values are fixed, the duty shall be chargeable with reference to such tariff value. Explanation - For the purposes of this section - (a) "rate of exchange" means the rate of exchange - (i) determined by the Board, or (ii) ascertained in such manner as the Board may direct, for the conversion of Indian currency into foreign currency or foreign currency into Indian currency; (b) "foreign currency" and ''Indian currency" have the meanings respectively assigned to them in clause (m) and clause (q) of section 2 of the Foreign Exchange Management Act, 1999 (42 of 1999).] 150. Procedure for sale of goods and application of sale proceeds (1) Where any goods not being confiscated goods are to be sold under any provisions of this Act, they shall, after notice to the owner thereof, be sold by public auction or by tender or wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
