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TMI Blog2005 (9) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... e action on the part of the custodian in delivering the goods to a person, who it was indicated had purchased the goods in an auction sale held on 23-3-2001 and the goods in fact was being delivered on 27-3-2001 to such an auction purchaser. The net result is that the petitioner was not able to clear the goods imported and being pre-empted of his efforts to recover the goods, the entire exercise of importing the goods, paying the value of the goods to the exporter through the Bank and even after paying the duty effort to clear the imported goods, as the custodian pleaded that proving futile it was unable to deliver the goods that had already been auctioned and being aggrieved by the non-delivery of goods has approached this Court seeking for suitable relief. 3.It is averred in the writ petition that the custodian, the 1st respondent and the officials of the Customs Department functioning under the 2nd respondent have both acted in an illegal manner; that their action is totally arbitrary and mala fide, that the petitioner who had become the owner of the goods on payment of the price to the exporter through the Bank had been deprived of the very goods and though the duty part had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and assuming that there is a slight infraction here or there, it is not one which can have a bearing on the ultimate auction sale and the conduct of the respondent being bona fide and in consonance with the provisions of the Act. It is further averred that it was only the not so diligent action on the part of the petitioner, which had contributed to this state of affairs and therefore, the petitioner cannot blame the respondent for the developments and as such the writ petition is to be dismissed. 7.Though a preliminary objection is sought to be raised about the maintainability of the writ petition, I am of the view that the 1st respondent also acting as a statutory functionary under the provisions of the Customs Act, action on the part of the 1st respondent is not beyond the scope of judicial review by this Court in spite of such objections. Ultimately the question may be only one of need or necessity to exercise the discretionary jurisdiction of this Court for interference or otherwise. I have heard Shri Gururaj, learned counsel for the8. petitioner and Shri Rajesh Chander, learned counsel for the 1st respondent as also Shri Devhadass, learned ASG for the 2nd respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anation : In this section, "arms" and "ammunition" have the meanings respectively assigned to them in the Arms Act, 1959 (54 of 1959)". "Section 153 : Service of order, decision etc - Any order or decision passed or any summons or notice issued under this Act, shall be served - (a) by tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent; (b) if the order, decisions, summons or notice cannot be served in the manner provided in CL (a), by affixing it on the notice board of the customs house." 10.It is alternatively contended that apart from the non-compliance of the statutory requirement the very action of the respondent such as even when the petitioner had filed his bill of entry as early as on 20-12-2000 and even on following up the matter by providing necessary answers and replies to the queries and even after obtaining the necessary data which was required to be provided for and the assessee going on with the assessment there was no need for the respondent to have included the goods that had been imported by the petitioner for auction sale as though it was goods which was left ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the 1st respondent has acted only as part of the Customs Department not apart from other customs officials that it was not to the knowledge, of 1st respondent as to whether the process of clearing the goods was in progress or whether the goods were assessed as on 26-3-2001 or not; that in this view of the matter there was nothing lacking in effort or even non-compliance in adhering to the requirement of law or the procedure on the part of the 1st respondent and therefore there is no question of interfering in the matter for issue of any writ as against the 1st respondent. 13.Even with regard to the averments and claim of the petitioner that the imported goods being not available as of now and therefore, the petitioner is required to be compensated, learned counsel for the 1st respondent submits that this is a matter not within the knowledge of the 1st respondent at any point of time and at any rate the petitioner did not place any material before the 1st respondent to indicate the factum of having acquired ownership of goods nor had sought for release of the goods in the manner provided for under the Act itself and if that is so, the action for putting the particular goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount etc., necessarily involves investigation of the facts as to when the petitioner became the owner of the goods; what, is the implication of it etc., and what could be the proper compensation in the circumstances if the petitioner is entitled to for any compensation. 18.The action taken by the respondent for auctioning the goods if can bind any person and even a true owner also the petitioner cannot stand on any better footing particularly as the petitioner got ownership of the goods even as per his own pleading at some point of time subsequent to the goods landing in the custody of customs. It is also not clear whether the petitioner had acquired ownership to the goods within 30 days before which the goods should be cleared from the custody of the customs department though through the 1st respondent who is acting as a custodian in terms of the statutory provisions. Even if a true owner of the goods cannot get the entire value of the goods if such action for auction sale is already carried out and if at all is entitled only to receive the balance after defraying costs incurred by the authorities for such auction sale and after deducting such other statutory dues, the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondents itself, I cannot help observing that the conduct and actions on the part of the respondents definitely calls for improvement, particularly the manner in which the goods was sought to be sold as even according to the submission of the learned counsel for the petitioner, the value of the goods was about Rs. 7,55,975.91 paise, whereas the value which the goods itself fetched on auction sale was Rs. 1.61 lakhs or around that. 24.In a situation where the importer is keen on having the goods released for his bona fide use; that he has also evinced keenness by paying the duty as assessed, the matter requires a little proper and careful consideration by the authorities and not to auction such goods also without due application of mind. It is necessary that the 2nd respondent - Commissioner of Customs should cause an investigation as to whether such auction purchases are being conducted in a proper and bona fide manner and to ensure that unnecessary hardship or harassment is not caused to bona fide importers as ultimately, the auction sale is only to ensure loss of revenue to the State and not to become a tool in the hands of the officials to harass or victimize bona fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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