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Madras High CourtWP/24475/2017disposed of

G.Prabhakaran, v. The Assistant Commissioner Of

2017-10-05Honourable Mr Justice T. S. Sivagnanam4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 05.10.2017

CORAM

THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.P.No.24475 of 2017 and W.M.P.No.25863 of 2017 G.Prabhakaran ...Petitioner Vs.

The Assistant Commissioner of Customs Air Admin, Ware House, Air Customs Airport Anna International Terminal Chennai International Airport Tirusoolam, Chennai.

...Respondent

Prayer:

Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus, directing the respondent to release the goods, detained in O.S.No.134/145-146 2014 INT by implementing and give effect to the Order-in-Appeal Viz. C.Cus-I No.145-146 of 2016 in C4 651.754 dated 04.03.2016 to the petitioner, within a reasonable time frame. For Petitioner :

Mr.M.Velmurugan For Respondent :

Mr.S.R.Sundar Senior Panel Counsel

ORDER

Heard Mr.M.Velmurugan, learned counsel for the petitioner and Mr.S.R.Sundar, learned Senior Standing Counsel for the respondent. With the consent on either side, the writ petition is taken up for disposal.

2.The petitioner seeks for a direction upon the respondent to release of goods detained in O.S.No.134/145-146 2014 INT by giving effect to the Order-in-Appeal dated 04.03.2016. The Additional Commissioner of Customs (ADJUDICATION-AIR) was passed Order-in -Original dated 10.09.2015 by which he ordered confiscation of 40 numbers of gold bars and 28 numbers of gold chains under Section 111(1) of the Customs Act, 1962 read with Foreign Trade (Development and Regulation) Act, 1992 giving an option to the petitioner to redeem the same for reexport/release on payment of fine of Rs.50,00,000/- under Section 125 of the Act. It was further ordered that the petitioner has to pay appropriate rate of duty in foreign convertible currency at 10% upto 1 kg and 36.05% on the remaining quantity of gold/jewellery if they exercise their option for home consumption. Further, the materials which were used to conceal the golds were ordered to be confiscated, apart from imposing personal penalty of Rs.10,00,000/- on the petitioner.

3.Aggrieved by the said order, both the petitioner as well as the Department preferred appeals before the Commissioner (Appeals-I) which was taken on file as Appeal Nos.145 and 146 of 2016. The Commissioner (Appeals-I), by order dated 04.03.2016, rejected the appeal filed by the Department and in the appeal filed by the petitioner, modified the order in so far as it relates to the imposing of personal penalty of Rs.10,00,000/- and reduced it to Rs.5,00,000/-. After the order was passed by the Appellate Authority, the petitioner requested the respondent to release the gold/jewellery in terms of the directions issued by the Commissioner (Appeals-I). Since these representations were not taking in the consideration, the petitioner has filed this writ petition.

4.The learned Senior Standing Counsel appearing for the respondent pointed out that as against the order passed by the Commissioner (Appeals-I), the Revenue has preferred Revision before the Central Government and the Revision has to be taken

up by the authority shortly and therefore, appropriate direction may be issued to the Revisional Authority. With regard to the power of the Revisional Authority is concerned, it has been held that the Joint Secretary to the Government is in the rank of the Commissioner and therefore, cannot function as the Revisional Authority.

5.The learned Senior Standing Counsel for the respondent submits that as of now an Officer in the cadre of Additional Secretary has been appointed as the Revisional Authority. It is not clear as to what is the stage of the Revision Petition filed by the Department and whether it has been taken on file etc. Since the Assistant Commissioner (Legal), Chennai has informed the petitioner that the outcome of the Revenue's appeal is shortly awaited by letter dated 23.01.2017. The present stage of the matter has not been placed before the Court by the Revenue. 6.

Thus, considering the above facts and circumstances, the Writ Petition is disposed of, by directing the respondent to release the gold/ jewellery for the purpose of re-export, subject to the petitioner complying with the condition imposed by the Commissioner (Appeals-I) in his order dated 04.03.2016 and also giving an undertaking to comply with the (*)Order of the Revisional Authority in the event the Department succeeds in the Revision filed before the Central Government. The above direction shall be complied with by the respondent within a period of eight weeks from the date of receipt of a copy of this order. In the meantime, it is open to the Department to pursue its Revision Petition before the Central Government. No costs. Consequently, connected Miscellaneous Petition is closed.

Sd/- Assistant Registrar(CS V) (*)Corrected as per order dated 05/12/2017 in WP.NO.

To To be substituted the The Assistant Commissioner of Customs order already despatched Air Admin, Ware House on 04/12/2017 Air Customs Airport Anna International Terminal Chennai International Airport Tirusoolam, Chennai +1cc to Mr.M.Velmurugan, Advocate, S.R.No. (*) 86114 +1cc to Mr.S.R.Sundar, Advocate, S.R.No.(*) 86005 W.P.No.24475 of 2017 AR V(CO) PSI 28/10/2017 NR 06/12/2017