IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13572 of 2001 DWARIKA PRASAD AGRAWAL, Son of Late Shaligram Agrawal, resident of Mohalla- Chhoti Kalyani Baralane, Kedarnath Road, Police Station- Town, District-Muzaffarpur (Bihar). …….Petitioner. Versus 1.The Union of India, through the Secretary, Ministry of Finance, Department of Revenue, Union of India, New Delhi. 2. The Secretary, Ministry of Finance, Department of Revenue, Union of India, New Delhi. 3. Central Board of Central Excise and Customs, through its Chairman, New Delhi. 4. The Chief Commissioner Customs, Tulsi Ganga Minar- 19- VidhanSabha Marg, Lakhnew(U.P.). 5. The Commissioner of Central Excise/Custom, Central Revenue Building, Patna. 6. The Deputy Commissioner, Customs, Patna, Patna Division. 7. The Directorate of Revenue Intelligence, Patna. …….Respondents. For the Petitioner :- Mr. Birju Prasad, Adv. For the Union of India :- Mr. Sarvedeo Singh, Adv. ----------- 10 07.12.2010 Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This writ petition has been filed for directing the respondent authorities to release the betel-nuts weighing 3,500 Kg. worth Rs. 3,50,000/- which was seized from the petitioner on the assumption that it was contraband item by the Directorate of Revenue Intelligence, Patna on 12.1.1977 and order for absolute confiscation was passed by the Deputy Commissioner, Customs(P)I.N.B., Muzaffarpur on 2 18.10.1977 in Adjudication No. 83-ADC/Cus./Pat./97 under Section 111(d) of the Customs Act, 1962 (hereinafter referred to as ‘the Act’ for the sake of brevity). 3. The fact of the case is that on 12.1.1977 the said articles were seized from the petitioner assuming them to be contraband foreign items and Confiscation Case No. 83-ADC of 1997 was initiated in which the Deputy Commissioner, Customs(P)I.N.B., Muzaffarpur passed order of absolute confiscation on 18.10.1997 (annexure-1). Against the aforesaid order the petitioner filed Appeal No.122/Pat/Cus./Appeal/99 under the provisions of Section 128 of the Act, which was dismissed by the Commissioner (Appeal), Customs and Central Excise, Patna vide his order dated 24.8.1999 (annexure-2). Against the aforesaid order the petitioner filed an appeal before the Appellate Tribunal, bearing Appeal No. C- 464/99 under the provision of Section 129 of the Act and after considering the facts and circumstances of the case the Customs, Excise and Gold (Control) Appellate Tribunal, Eastern Bench, Calcutta allowed the appeal vide order dated 22.05.2000 (annexure- 3) and set aside the impugned orders of confiscation etc. Against the said order of the Appellate Tribunal, the 3 Commissioner of Customs, Patna filed Tax Case No. 13 of 2001 in the High Court under the provision of Section 130 of the Act. The said Tax Case was dismissed by a Division Bench of this Court vide order dated 18.9.2008 affirming the order of the Tribunal. The order of this Court was not challenged by the authorities concerned and hence it attained. 4. In the said circumstances the petitioner was fully entitled to get his betel-nuts weighing 3,500 Kg. released in his favour. The seizure authority had assessed the value of the said seized articles at Rs. 3,50,000/- and hence if the authorities were unable to release the betel-nuts, atleast the value of the same should have been paid to the petitioner. However it transpires that after succeeding before the Appellate Tribunal vide order dated 22.05.2010 (Annexure 3) the petitioner filed this writ petition for the aforesaid release and vide order dated 14.05.2003 a Bench of this Court directed this case to be listed after disposal of Tax Case No. 13 of 2001 which was finally disposed of on 18.09.2002. 5. On the other hand, learned counsel for the respondents claim that in the mean time, the said articles 4 were auction sold for Rs. 1,23,415/- and vide order dated 21.06.2005 the Assistant Commissioner (Refund), Customs (H.Q.R.S.), Patna directed that in view of order dated 22.05.2010 passed by the Appellate Tribunal the said amount be refunded to the petitioner and accordingly the said amount was refunded to the petitioner on 01.08.2005 and the petitioner had accepted that amount. 6. Learned counsel for the petitioner submits that payment of the aforesaid amount is not sufficient as he was entitled to the entire amount, which his articles were found to be valued by the customs authorities themselves i.e. Rs. 3,50,000/-. In this connection he relies upon a decision of a Bench of this Court in case of Dwarika Prasad Agrawal versus Union of India and others, reported in 2006(4)PLJR 166, in which it was held that the respondents have to make the entire payment which they had valued themselves on the date of seizure and hence they are required to pay the difference of the amount namely the value of the article and the amount already paid with interest at the rate of 12% per annum from the date of seizure upto the date of payment of entire amount. 7. Learned counsel for the petitioner also relies 5 upon another decision of this Court in case of Jitendra Bothra versus Union of India and others, reported in 2004(2)PLJR807, as well as a decision of the Supreme Court in case of Nothern Plastics Ltd. versus Collector of Customs and Central Excise, reported in 2000(1)SCC- 545 and an unreported decision of this Court dated 10.4.2009 passed in M.A. Case No. 632 of 2007. In the earlier two cases interest were directed to be given at the rate of 12% whereas in aforesaid Miscellaneous Appeal interest was directed to be paid at the rate of 15% per annum. 8. Learned counsel for the petitioner further submits that he had no knowledge about the auction sale of his articles nor any notice to that effect was ever served upon him although it was specifically required under the provision of Section 150 of the Act. In this connection he relies upon a decision of a Bench of this Court dated 22.08.2007 passed in C.W.J.C. No. 70861 of 2002 in which it was specifically held that the price fixed for auction and the sale of the betel-nuts having been made without any notice to the petitioner, the same was absolutely illegal as the Customs Department cannot challenge the price assessed by their own authorities at the time of seizure of the articles. 6 9. In the aforesaid facts and circumstances the auction sale having been made without any notice to the petitioner and at an arbitrary price which was ridiculously and hugely less than the value fixed by the authorities themselves at the time of confiscation, the same cannot be legally relied upon. Accordingly this writ petition is allowed and the respondents are directed to pay Rs. 2,26,585.00 (Rs. 3,50,000/- which is the value of the articles assessed by the authorities at the time of seizure minus Rs. 1,23,415/- which was paid to the petitioner by the authorities on 01.08.2005) within four months from the date of receipt/production of a copy of this order along with interest at the rate of 12% per annum from the date of seizure up to the date of payment of the entire amount. It may be noted that any loss accrued to the Department of Revenue, Union of India in this matter may be compensated by deducting the amount of loss from the pockets of the authorities due to whose mistake public exchequer has been burdened. Bhardwaj ( S.N.Hussain, J.)