IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2221 of 2005 Krishna Bahadur Chhetri, S/o Late Bahadur Chhetri, Proprietor of M/s Dahal Agro Products, R/o Village-Dhumpara, P.O.-Nathua Hat, P.S.-Banarhat, District-Jalpaiguri(West Bengal). …… 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 Commissioner of Customs, Patna. 5. The Deputy Commissioner of Customs (P), Farbesganj. 6. The Assistant Commissioner of Customs, Farbesganj. …….. Respondents. For the petitioner : Mr. Birju Prasad, Advocate. For the Respondents : Mr. Sarvadeo Singh, C.G.C. ----------- 3. 25.01.2011 1. Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This writ petition has been filed for directing the respondents authorities to release 297 bags of betel nuts weighing 21,681 Kgs. worth Rs. 21, 68,100/- which was seized from the petitioner on the assumption that it was contraband item by the Directorate of Revenue Intelligence, Patna on 22.01.1999 and order for absolute confiscation was passed by the Commissioner, Customs (P), Patna on 16.11.2000 in Adjudication Order No. 8/CC/ADJ/2000 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 22.01.1999 the said articles were seized from the petitioner assuming them to be contraband foreign items and the aforesaid confiscation case was initiated in which the Commissioner, Customs(P), Patna passed - 2 - order of absolute confiscation on 16.11.2000. Against the aforesaid order the petitioner filed an appeal before the Appellate Tribunal bearing Appeal No. C-16-20/2001 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, Kolkata allowed the appeal vide order dated 31.05.2001 and set aside the impugned orders of confiscation etc. Against the said order of the Appellate Tribunal the Commissioner of Customs, Patna filed Tax Case No. 24 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 18.09.2008 affirming the order of the Tribunal. The order of this court was not challenged by the authorities concerned and it has attained finality. 4. In the said circumstances, the petitioner was fully entitled to get his above mentioned betel-nuts released in his favour. The seizure authority had assessed the value of the said seized articles at Rs. 21, 68,100/- and hence, when the authorities were unable to release the betel-nuts at least 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 31.05.2001(Annexure-6) the petitioner filed this writ petition for the aforesaid release. 5. On the other hand, learned counsel for the respondents claims that much before the filing of this writ petition the said - 3 - articles were auction sold for Rs. 7, 04, 416/- and vide order dated 16.02.2004 the Assistant Commissioner (Refund), Customs (H.Q.R.S.), Patna directed that in view of order passed by the Appellate Tribunal, the said amount be refunded to the petitioner and accordingly, the said amount was refunded to the petitioner on 16.02.2004 and the petitioner had accepted that amount. 6. In reply learned counsel for the petitioner submits that payment of the aforesaid amount is not sufficient as he was entitled to the entire amount, as per the valuation fixed by the customs authorities themselves i.e. Rs. 21,68,100/-. 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 upon another decision of this Court in case of Jitendra Bothra Versus Union of India and others, reported in 2004(2) PLJR 807 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 10.04.2009 passed in M.A. Case No. 632 of 2007. In the earlier - 4 - two cases interest were directed to be given at the rate of 12% per annum 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 another decision of a Bench of this Court dated 22.08.2007 passed in CWJC 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. 9. In the aforesaid 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. 14,63,684.00 (Rs. 21,68,100/- which is the value of the articles assessed by the authorities at the time of seizure minus Rs. 7,04,416.00 which was paid to the petitioner by the authorities on 16.02.2004) 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 - 5 - 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 in such manner. Sujit (S. N. Hussain, J.)