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Judgment
K. Chandru, J.—The Petitioner has filed the present writ petition, challenging the order of the 4th Respondent dated 07.12.2005 and after setting aside the same further seeks for a direction to return a sum ofRs.3,94,487/- together with accrued interest.
When the matter came up on 11.06.2007, notice was taken on behalf of the third Respondent. Subsequently, on behalf of the Respondents 1 and 2, Mr. Annamalai, learned Counsel appears. On behalf of R4, Mr. K.K. Senthilvelan, learned Assistant Solicitor General took notice.
The case of the Petitioner was that he went to Sharjha and returned to India on 25.04.2003 via Trichy Airport. On his arrival, he was intercepted by the Officers of Directorate of Revenue Intelligence at the arrival lounge of the Airport. On examining his baggages, it was found that the Petitioner had 100 Nos. of Nokia cell phones, 190 Nos. of Samsung cell phones and other accessories which was valued at Rs. 13,28,000/-. The goods seized from the Petitioner was recorded under a Mahazar on 25.04.2003. The Petitioner was also arrested for misdeclaring the goods under the provisions of the Customs Act, 1962. He was remanded to judicial custody. He was also detained under the provisions of the COFEPOSA Act for a period of one year due to the detention order.
An adjudication proceeding was initiated against the Petitioner u/s 124 of the Customs Act. The Petitioner gave a reply to the Show Cause Notice and attended a personal hearing. At the end of the adjudication proceedings, the second Respondent passed an order confiscating the entire goods under seizure and imposed a penalty of Rs. 3,00,000/-against the Petitioner. The Petitioner preferred an appeal before the first Respondent, Commissioner of Customs, Trichy, who rejected his appeal. Aggrieved by the order of Commissioner of Appeals as well as the second Respondent, confiscating the goods, the Petitioner preferred a review application before the third Respondent. After hearing the Petitioner (through his counsel), the third Respondent held that the subject goods whereon-prohibited goods and they can be allowed to be re-exported by the Petitioner or through his authorized representative on redemption fine of Rs. 2.25 lakhs. After getting an order passed by there visional Authority, the Petitioner through his counsel send a notice requesting permission to return the goods after paying the redemption fine and penalty.
The first Respondent sent the impugned letter dated07.12.2005 informing the Petitioner that he is entitled to redeem total sale proceeds of Rs. 11,83,460/-. He was informed that the mobile phones confiscated by notification dated 12.11.1998 u/s 110 of the Customs Act were disposed of in view of their perishable nature and their depreciation with the passage of time and in accordance with Section 110(1B) of the Customs Act and pursuant tithe order passed by the Judicial Magistrate dated 21.05.2003. The Petitioner was informed that he was entitled to redeem the total sale proceeds of Rs. 11,83,460/-on payment of appropriate customs duty ofRs.3,94,487/-, which is 50% of the accessible value of Rs. 7,88,973/�as well as the redemption fine of Rs. 2,25,000/-and a penalty ofRs.3,00,000/-. Thereafter, adjusting the amount, he was informed that he is bound to pay a sum of Rs. 2,63,973/-.
The Petitioner contended that the 4th Respondent ought not to have sold the goods without waiting for the legal remedy available to the Petitioner and the question of payment of any duty on the goods sold by the 4th Respondent was illegal. A further levy of customs duty on the Petitioner was unwarranted.
The 4th Respondent has filed a counter affidavit dated07.09.2007 together with typed set of papers. The order passed by the Judicial Magistrate No. I, Tiruchirapalli in C.M.P. No. 3767 of 2003dated 21.05.2003 permitting the Directorate of Revenue Intelligence(DRI) to sell the goods was also produced. A notification issued u/s 110 of the Customs Act showed that in The Schedule, Cellular phones have been included as perishable goods. It was stated that u/s 128 of the Customs Act, a person aggrieved by an order passed by an officer of customs lower in rank than a Commissioner of Customs has a remedy by way of appeal to the Commissioner (Appeals) within 60 days. The Petitioner has not availed the said remedies.
In paragraphs 5 and 7 of the counter affidavit, it was averred as follows:
As the goods were not in hand of the Department and they were already disposed off as per Section 110(1A) of the Customs Act, the Respondent issued an order under. No. VIII/20/14/2005-Refund, dated 07.12.2005for refund of Rs. 2,63,973/-i.e. the sale proceeds of the goods after deducting the redemption fine of Rs. 2.25 lakhs, penalty ofRs.3,00,000/-and Customs duty ofRs.3,94,487/-leviable on the goods as per Section 125 of the Customs Act, in obeyance to the above order of Ministry of Finance. The Petitioner filed refund application forRs.2,63,973/-only. The said refund amount ofRs.2,63,973/-was received by the party on13.12.2005 without any protest.
The Petitioner has also stated that there is no question of any duty on the goods which were sold by the 4th Respondent and the levy of Customs duty of Rs. 3,94,487/-on the Petitioner is unwarranted. It is respectfully submitted that the goods were sold as per the provisions of Section 110(1A) taking into consideration, the depreciating nature of its value, if it is prolonged to be kept in Th�oden. Thus, the intrinsic value of the cell phones was protected by disposing of the same u/s 110(1A) of the Customs Act, 1962. If the cell phones were to be disposed now, it could fetch much lower value. The only option to the department is to refund the sale proceeds (i.e. cum duty price) after deduction of duty, fine and penalty which is a statutory liabilities under the provision of Customs Act and the procedure laid down in the Act is legally carried over. Hence, the contention of the Petitioner is legally untenable.
In the light of the stand taken by the Respondents, this Court is not inclined to entertain the writ petition. If the Petitioner is so aggrieved, he can always file an appeal to Commissioner (Appeals) u/s 128 against the impugned order. Hence ,the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.