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TMI Blog2005 (3) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... laiming anything more than that as market value unless otherwise established. But at the same time, we cannot but observe that the Department had committed an error in selling the goods during the pendency of the appeal for which the Department ought to have fixed liability and taken appropriate steps for the purpose of keeping its house in order by awarding exemplary punishment and recovering the loss fixing the liability against the persons responsible after holding proper enquiry, if necessary, even after lapse of such a long time. From the record, it is clear that the respondent is entitled to the market value of the goods as declared by him u/s 108 viz: at Rs. 2,40,000/-, in the absence of any authenticity of the seizure value given in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s challenged by the dealer successfully. The order of confiscation was set aside. Though Section 150 of the Customs Act prescribes that the goods not confiscated can be sold only through auction or tender or by consent of the owner in any other manner after giving notice to the owner. That apart, ordinarily until finalisation of the proceedings the goods could not be sold except under an order passed in connection with the proceedings or in case of perishable goods. However, in this case, the goods were not perishable. Still the department had sold the goods during the pendency of the appeal without following the legal formalities. Therefore, on account of being successful in the appeal, the dealer asked for return of the goods. The goods h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady been sold during the pendency of the appeal. 3. Both the learned Counsel had addressed the Court on the question elaborately. Various decisions have been cited. Decision by Jurisdictional High Court : Binding : 4. Before we proceed to decide the said question, we may refer to the order passed by the learned Tribunal itself at page 22 of the Paper Book. The Tribunal had discussed the decision in Union of India v. Sambhu Nath Karmakar, 1986 (26) E.L.T. 719 of this Court dealing with the similar question laying down that the market value has to be returned. This High Court being the jurisdictional Court, the decision thereof is binding on the Tribunal. It had also considered the decision in Dhian Singh v. Union of India, AIR 1958 SC 274; S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.1 In the present case, it is apparent that the dealer himself had given the value at Rs. 2,40,000/- in his own statement under Section 108. Admittedly, the seizure value was entered into in terms of Section 110. Section 110 does not prescribe any mode of evaluation of the goods seized to be so authenticated to be acceptable to the Court or the Tribunal. In case of a dispute between the parties, with regard to the valuation of the goods, unless there is an adjudication on the question of the value of the goods since settled between the parties or by reason of certain orders passed in the proceeding holding the value put forth at the time of seizure as the value of the goods, the same cannot be accepted to be the value of the goods. At the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay the price being the market value. If it is to be taken by the owner, then it would definitely be the market value and not the seizure value. The Bombay High Court in Giridharlal Kalyandas Advani (supra) and the Gauhati High Court in Biplab Rakshit (supra) have taken the same view. At the same time, Delhi High Court in the case of Kailash Ribbon Factory Ltd. v. Commissioner of Customs Central Excise, New Delhi, 2002 (143) E.L.T. 60 held that the goods are supposed to be returned and in case it is sold the value thereof is supposed to be paid. 5.3 In the facts of this case, the sale of the goods might cause immense loss to the petitioner, but when the petitioner himself valued the goods at Rs. 2,40,000/- all by himself in a statement und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CR 447 (Calcutta)] in which the principle of grant of interest was upheld. Such interest should be payable from the date of the judgment by the learned Tribunal, namely, 25th March, 2000. Order : 7. Thus, the appeal is allowed. The order of the learned Tribunal is hereby set aside. The Department shall refund/pay to the dealer/respondent the sum of Rs. 2,40,000/- as principal together with interest calculated thereon @ 9% per annum payable from 25th March, 2000 till the date of payment within a period of 3 (three) months from date. 7.1 The reference is answered in the affirmative in favour of the Department. 7.2 Xerox certified copy of this Judgment be made available to the parties, if applied for, on the usual terms. - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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