9911796707
TMI Blog2003 (5) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... D Customs Department) in which the customs authority releases the drawback amount payable to the petitioner. There is no dispute that such an account is opened by an exporter for the purpose of receiving drawback benefits and such account is called Custom Account. In such an account except monetary benefits received under drawback scheme, no other amount can be kept. 3.In this writ application, the writ petitioner has alleged that in respect of 9 different transactions mentioned in paragraph 4 of the writ application, goods exported by the petitioners were duly received and accepted by the overseas buyers and there was no complaint from the overseas buyers with regard to those goods or transactions in any manner. It is further alleged that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exchange and Prevention of Smuggling Activities Act, 1974. It is further alleged that the Joint Secretary to the Government of India in exercise of power conferred under Section 3 of sub-section 1 of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 passed an order of detention against the writ petitioner. Since the writ petitioner is absconding, the said detention could not be served upon the writ petitioner. 5.The definite case of the customs authority is that a specific intelligence was received that some exporters were trying to export Ball pens, rubber side wheels and garments by misdeclaring the description, value and quantity of the goods under duty drawback scheme. In this regard, 8 containers stuff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar exports in the case of Shyam Sunder Enterprises has been held to be improper by this Court in the order dated May 6, 2002 in W.P. No. 145 of 2002 [2002 (148) E.L.T. 3 (Cal.)]. Since the export had been made illegally by giving misdescription, the petitioner was not entitled to drawback. Ultimately, it is contended that although the decision was taken to give benefit of duty drawback amount to the petitioner, the said amount was not transferred to the bank account of the petitioner because if the allegations made against the petitioners are ultimately found to be true, the petitioner will not be entitled to any drawback benefit. It is, however, admitted in paragraph 10 of the affidavit-in-opposition that the respondent No. 4 was dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and there is no provision under the Customs Act for seizure of such money in the hand of the petitioner. He thus prays for a direction upon the bank to release money lying in the said account in favour of the petitioner. 11.Mr. Bandyopadhyay, the learned Counsel appearing on behalf of the customs authority has, on the other hand, vehemently disputed the aforesaid contention of Mr. Chatterjee and has contended that this writ application should be dismissed as there is no specific allegation against the customs authority in the writ application. According to Mr. Bandyopadhyay serious types of fraud have been alleged against the petitioner and those frauds are being subject to investigation. This Court, Mr. Bandopadhyay submits, should not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to drawback amount, in such a case, the authority can refuse such drawback; but once drawback amount is issued and the same has been placed in the account of the petitioner, such money becomes property of the petitioner. The moment it becomes property of the petitioner, the customs authority can attach such property only in accordance with law either by taking aid of necessary order through competent court or by exercise of power, if conferred upon it, by statute. Mr. Bandyopadhyay failed to draw attention of this Court to any provision of any statute which enables Deputy Commissioner to seize any personal property of the petitioner including money lying in a bank account merely because an investigation is going on in respect of an export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lting in withholding of the amount available in the said account of the petitioner and such interference on the part of the respondents was unauthorised. If the customs authority itself asserts that drawback in respect of those alleged fraudulent transactions has not been transferred to the account of the petitioner there cannot be any conceivable justification even for running towards the account of the petitioner. 17.I thus find that there has been serious infringement of the legal right of the petitioner in enjoyment of his own property by the illegal acts of respondent No. 3 and respondent No. 4 in withholding the amount lying in the said account in the absence of any valid order from any competent court or authority. The petitioner be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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