9911796707
TMI Blog1999 (9) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... filed for direction under Article 142 of the Constitution read with Order 47 Rule 6 of the Supreme Court Rules, 1966. 2.The applicant had imported 59 jumbo rolls of Photographic Colour Films (Unexposed) Positive in January, 1989. He filed the bill of entry on 11-1-1989 for clearance of the said goods. The goods were not cleared by the customs authorities as they had some doubt regarding its correct classification and entitlement to the benefit of exemption of customs duty and countervailing duty under the notifications mentioned in the bill of entry. That ultimately led to issuance of show cause notice on 14-8-1989 for confiscation of the said goods on the grounds that there was misdeclaration of description in the bill of entry for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Collector. 4.Setting aside the order dated 14-9-1989 and the order passed by CEGAT this Court held that the goods were not mis-declared by the appellant and they were also eligible for import under OGL. This Court further held that for these reasons the goods imported by the appellant were not liable to confiscation and the impugned orders passed by the Collector and CEGAT were illegal. Both the appeals were therefore allowed. 5.What is now contended by learned senior Counsel Mr. Dave in these applications is that the order of confiscation having been set aside the respondent is liable to return the goods to the applicant. He also submitted that the respondent should not have, without obtaining the order of this Court, sold away ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of, would have been required to be released in favour of the applicant and the applicant could have claimed damages for the damage to the goods and loss caused to it as a result of illegal retention of the goods by the respondent. We have referred to above how the applicant was prevented by the respondent and the Hindustan Photo Films from redeeming/obtaining those goods. The goods having been sold away the respondent is now not in a position to return the goods to the applicant. As this situation has been brought about by the respondent by his own acts he cannot now escape from the liability of returning to the applicant the money value of the said goods. If without challenging the first order passed on 31-1-1989 and the interim order pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scated and sold by the respondent and, therefore, the applicants cannot be said to have imported the goods. On the other hand, it was contended by Mr. C.S. Vaidyanathan, learned Additional Solicitor General that the import of the goods was by the applicants and as soon as the said goods landed on the land mass of India proper amount of duty, became payable thereon. In our opinion, Mr. Vaidyanathan, is right in his submission particularly, when full impact has to be given to the order passed by us declaring retention and confiscation of the goods to be illegal. Mr. C.S. Vaidynathan, learned Additional Solicitor General, however, further submitted that value of the goods as shown in the import documents was only Rs. 33.04 lacs and as the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermined only at Rs. 48.50 lacs 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 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. 33.04 lacs. Merely because it is open to the applicant to initiate such an action it would not be just and proper to refuse the claim made in these applications as in any case the applicant is ent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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