IN THE HIGH COURT OF BOMBAY AT GOA CIVIL APPLICATION (REVIEW) NO. 1 OF 2004 IN WRIT PETITION NO. 67 OF 1987 CHOWGULE AND COMPANY LTD., ... Applicant Versus THE UNION OF INDIA AND 2 ORS., ... Respondents Mr. S. D. Lotlikar, Senior Advocate with Mr. H. Kankonkar, Advocate for the applicant. Ms. Susan Linhares, Central Govt. Standing Counsel for respondent No.1. Mr. Y. V. Nadkarni, Advocate for respondent No.3. Coram:- S. C. DHARMADHIKARI & F. M. REIS, JJ. Date:- 31st March, 2011 P.C.:- This Civil Application for review has been pending in this Court for the past more than six years. 2. It is not necessary to refer to the chequered history as it is set out in the order under review. It is also not necessary to go into the several contentions sought to be raised in support of this Review Application and to oppose it. 3. From a reading of the order under review, what we find is that the application, namely, Misc. Civil Application No.530/1998 in Writ Petition No.67/1987 and Misc. Civil Application No.276/1999 were disposed of by a common order dated 17th December, 2003, which is under review. 4. By the subsequent development noted in the order under review, namely, of salvage of the vessel in question and the order of the Hon'ble Supreme Court dated 20th August, 1986, allowing the applicants to remove the wreckage under the supervision of the customs authority, it was also observed that the Customs Authority would be entitled to determine the customs and excise duty on the wreckage. This was in the light of the development of the wreckage of the vessel and, therefore, whether the proviso to the Notification would apply or not, is a question which, according to the Division Bench, remained to be answered since 1985. It is observed in the order under review that inspite of several attempts made in the past, no serious progress was made to salvage the wreck of the vessel and as a consequence of which, the liability to pay customs duty has remained undecided since, 1985, which is a loss to the Revenue. 5. Therefore, the Division Bench issued certain directions and observed that it will be open to the Customs Authority to invoke the Bank Guarantee on failure of the applicants to pay the amount, within two weeks from determination made by the Customs Authorities regarding the liability of the applicants to pay customs and excise duty in respect of the wreckage. Mr. Lotlikar, learned Senior Counsel has clarified that this observation was made because a right was given to the applicants to withdraw the money lying in this Court, against the Bank Guarantee being furnished to the satisfaction of the Registrar of this Court. However, on instructions, he states that the amount has not been withdrawn and, therefore, the question of furnishing the Bank Guarantee does not arise. 6. The only complaint made during the course of arguments is that despite the liberty being given earlier by the Division Bench of this Court by the order under review, the Department has not taken any steps to assess and determine the customs duty, till date. In these circumstances, the moneys are lying deposited in this Court to nobody's advantage. If the applicants are not able to withdraw the moneys which have been deposited by the applicants during the course of the orders passed in the main Writ Petition, namely, Writ Petition No.67/1987, it is because the Department failed to take the necessary steps in accordance with law. The Authorities cannot prevent the applicants from withdrawing the moneys which belong to them and particularly when no assessment and determination of the duty liability has been made till date. The liberty given by the Division Bench has not been utilised and instead the issue is kept pending. The attempt is to deprive the applicants of their own money. 7. In these circumstances, and the amount being sizable, he prays that the Applicant may be permitted to withdraw it. The Department cannot take advantage of the pendency of the Review, any further. During the pendency of these proceedings which are also in the nature of review, the Department was not prevented from acting in pursuance of the liberty granted by the Division Bench. 8. Such being the case, equity demands that the amount be allowed to be taken away with the accrued interest and keeping open the controversy as to whether the applicants are entitled to interest at the rate of 18% p.a. from the date of payment/deposit made in the Court, till the date of repayment/refund. 9. On the other hand, Ms. Linhares appearing on behalf of the Department would submit that in the affidavits filed in this application, the amount has been stated and the Department, therefore, may be permitted to take away the money to the extent the duty liability is determined. 10. With the assistance of the Counsel appearing for the parties, we have perused the Order under review. On a query from the Court as to whether the statements made in the affidavits on behalf of the Department would satisfy the requirements stipulated by the Enactment in question, in all fairness, it was pointed out on behalf of the Department that no assessment order has been passed and communicated to the applicants till date. When we inquired as to how much time such an exercise would have taken and was there any prohibition in undertaking and completing it for all these years, there was no satisfactory explanation. 11. In these circumstances, we are of the view that this application can be disposed of with a direction that if the Department assesses and determines the duty liability, in accordance with law, and communicates it to the applicants, within a period of six weeks from today, the amount which is deposited in this Court by the applicants will be permitted to be withdrawn by the Department, so as to meet the duty liability and if there is any deficiency, the Department can recover it, in accordance with law, but subject to legal rights and contentions of the applicants. Needless, therefore, to state that if the Department does not initiate and complete the process as stated above within a period of six weeks from today, the applicants will be entitled to withdraw the sum deposited in this Court with accrued interest, but without prejudice to its rights and contentions that it is entitled to interest at the rate of 18% p.a. throughout, which controversy shall not be treated to have been concluded by either the order under review or this order. We also clarify that in case the duty liability is determined and communicated within the aforesaid period, it will be open to the applicants to impugn the order and directions in that behalf by initiating appropriate proceedings and all pleas in such proceedings are kept open, including the plea that the applicant is entitled to interest at the rate of 18% throughout. We also clarify that no observation in the order under review shall prevent either the Applicants or the Department from taking recourse to law and it should not be construed that the Division Bench has concluded the issue that the wreckage would attract any customs duty in terms of the subject-Notification or otherwise under the Customs Act. We make it clear that we have only given liberty to the Department to initiate the process and complete the exercise within a period of six weeks from today. That does not mean that it would not be open for the applicants to raise a plea of bar of limitation, if any. Even that aspect is not concluded by the order under review or this order. Lastly, we clarify that on determination of the Duty Liability in terms of the liberty granted above, the Department is free to withdraw the sum computed in that behalf from the amounts deposited in this Court. The amount to be withdrawn should be to the extent of the Duty Liability and the surplus, if any, should be permitted to be withdrawn by the Applicants with accrued interest. S. C. DHARMADHIKARI, J. F. M. REIS, J. ssm.