IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 10TH SEPTEMBER 2009 / 19TH BHADRA 1931 WP(C).No. 3251 of 2006(K) ------------------------- PETITIONER: --------------- K.UMMER, KOCHANTAVIDA UMMAR, S/O.LATE ABDULLA, KOCHANTAVIDA HOUSE, THRIPPANGODE, THALASSERY, KANNUR DISTRICT,R EP. BY POWER OF ATTORNEY RAEEF K.P. S/O.MOIDU, AGED 21 YEARS, R/A.PALLIPPURATH HOUSE, PATTIAM DESOM, KAST KADIROOR, TELLICHERRY,KANNUR D BY ADV. MR. SUNNY MATHEW RESPONDENTS: --------------- 1. THE ADDITIONAL COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, CALICUT COMMISSIONERATE, CALICUT. 2. THE COMMISSIONER OF CENTRAL EXCISE, AND CUSTOMS (APPEALS), COCHIN. 3. THE ADDITIONAL COMMISSIONER OF CUSTOMS, KOZHIKODE. 4. THE CHIEF COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, KERALA ZONE, COCHIN. 5. UNION OF INDIA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, CENTRAL SECRETARIAT, NEW DELHI. BY ADV. MR. JOHN VARGHESE, ASSISTANT SG MR. P.PARAMESWARAN NAIR,ASST.SOLICITOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP (C) 3251 of 2006 APPENDIX PETITIONER'S EXHIBITS : EXT.P1 : TRUE COPY OF THE ORDER (ORIGINAL) NO. 2/2004 DATED 19.1.2004 PASSED BY THE FIRST RESPONDENT. EXT.P2 : TRUE COPY OF THE ORDER DATED 30.01.04 PASSED BY THE SECOND RESPONDENT. EXT.P3 : TRUE COPY OF THE PETITION DATED 17.05.2004 ISSUED BY THE ADDITIONAL COMMISSIONER FOR CHIEF COMMISSIONER, COCHIN EXT.P4 : TRUE COPY OF THE PETITION DATED 15.4.2005 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXT.P5 : TRUE COPY OF THE POSTAL RECEIPT ISSUED BY THE DEPART- MENT OF POSTS AND TELEGRAPHS FOR HAVING SENT EXT.P4 TO THE 4TH RESPONDENT. RESPONDENT'S EXHIBITS : EXT. R1 (a) : TRUE COPY OF THE REVISION APPLICATION SUBMITTED BY THE RESPONDENTS BEFORE THE MINISTRY OF FINANCE /TRUE COPY/ P.A. TO JUDGE P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C) No. 3251 of 2006 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 10th day of September, 2009 JUDGMENT The petitioner, on return to India from abroad, was intercepted at the exit gate of the baggage hall of Karipur Airport by the Officers of Customs on 6.1.2004, when he tried to have exist through the 'green channel', declaring that he had no dutiable goods in possession, to have them declared. However, on physical verification, it was revealed that the petitioner was in possession of 60 mobile phones, 50 mobile phone CD roms, 60 mobile phone catalogues and mobile phone covers having a total value of Rs.4 lakhs (international value) and one 'Supra' CD player. Since the petitioner did not have any valid document in support of the goods, he was charged of the offences under Sections 132 and 135 of the Customs Act, 1962. Necessary proceedings were pursued against him and the goods were confiscated as per Ext.P1 order, imposing a fine of Rs. 4 lakhs and also a penalty of Rs. 50,000/-. 2. Aggrieved of Ext.P1 order, the petitioner preferred statutory appeal and after considering the facts and circumstances, the fine was reduced to Rs. 3 lakhs and redemption of the goods was permitted on payment of Rs. 50,000/- as redemption fine, as provided under Section 125 of the Customs Act. In the meanwhile, the goods confiscated from the petitioner were sold by the departmental authorities, under which W.P. (C) No. 3251 of 2006 : 2 : circumstance, the petitioner filed representation dated 1.3.2004 seeking refund of the sale proceeds and the 'redemption fine' was paid on 12.4.04. In response to said representation, the petitioner was let known vide Ext.P3 reply dated 17.5.2004 that the request for refund of the sale proceeds can be considered only after finalization of the departmental proceedings stated as pending. It is the case of the petitioner that, the enquiry made by him revealed that no such proceedings were ever pending, under which circumstance, he preferred Ext.P4 representation on 16.4.2005 before the 4th respondent, as borne by Ext.P5 receipt issued in this regard. Since there was absolutely no response from the part of the departmental authorities, the petitioner has approached this Court by filing the present Writ Petition, seeking for a direction to refund the sale proceeds as stated above. 3. The respondents have filed counter affidavit narrating the sequence of events, simultaneously pointing out that, Ext.P2 order passed by the appellate authority was decided to be challenged by filing further proceedings and accordingly, a revision petition was filed before the revisional authority/Ministry as borne by Ext.R1. It is also stated in paragraph 5 of the said counter affidavit that, on receipt of the representation of the petitioner seeking to release of the sale proceeds, the revisional authority was reminded vide letters dated 11.3.2005, W.P. (C) No. 3251 of 2006 : 3 : 25.4.2005 and 8.12.2005 asking the position of case. It is also mentioned therein that, the revisional authority, vide their letter dated 21.12.05, had informed that they were not in receipt of any such proceedings; under which circumstance, the respondents addressed the postal authorities vide their letter dated 13.1.2006 for substantiating the delivery of the postal articles sent by registered post and that reply to the same was awaited. Even though, 3 years have elapsed after filing the said counter affidavit, nothing further has been brought to light, as to the fate of the proceedings stated as filed before the revisional authority. Eventhough the respondents have got a case that they had filed Ext. R1 along with a petition for stay, in view of the admitted fact as to the non-receipt of any such proceedings by the revisional authority, and since there is no case for the respondents that the defect has been cured or any fresh proceedings have been filed and any interim order has been obtained, it has to be presumed that no such proceedings are pending. In any view of the matter, this Court finds that one more opportunity can be given to the respondents to have the proceedings finalized, if at all, the revision petition is pending. 4. In the above circumstances, the respondents are hereby directed to cause the revision petition (stated as filed as described in paragraphs 3 and 4 of the counter affidavit dated 21.3.2006) finalized in accordance with law, if pending, as expeditiously as possible, at any W.P. (C) No. 3251 of 2006 : 4 : rate, within three months from the date of receipt of a copy of this judgment. The sale proceeds shall be refunded to the petitioner within 4 months; subject to the orders to be passed by the revisional authority as above. The Writ Petition is disposed of accordingly. P. R. RAMACHANDRA MENON, JUDGE kmd