N.Hyder Ali, v. The Principal Commissioner Of
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.06.2016 C O R A M THE HON'BLE Mr.JUSTICE T.S.SIVAGNANAM W.P.No.20259 of 2016 N.Hyder Ali ... Petitioner Vs
1. The Principal Commissioner of Customs, New Custom House, Meenambakkam, Chennai - 600 027.
2. The Assistant Commissioner of Customs, Anna International Airport, Chenai - 600 027.
... Respondents Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus directing the respondents to implement the order-in-appeal C. Cus-I No.141/2016 dated 29.02.2016 passed by the Commissioner (Appeals), Chennai and further direct to release the seized gold for the purpose of re-export on payment of fine as imposed the Commissioner (Appeals).
For petitioner : Mr.Hari Radhakrishnan For respondents : Mr.Vikram Ramakrishnan Additional Government Pleader
ORDER
Heard Mr.Hari Radhakrishnan, learned counsel for the petitioner and Mr.Vikram Ramakrishnan, learned Standing Counsel for the respondents and with their consent, the writ petition is taken up for final disposal.
2.In this writ petition, the petitioner seeks for issuance of a writ of mandamus to direct the respondents to implement the order passed by the 1st respondent dated 29.02.2016. 3.The petitioner an Indian citizen arrived in Chennai Airport from Malaysia and he had brought two gold chains and
cigarettes and failed to declare the same to the Customs. Noting that the petitioner was a frequent traveller and he was staying in abroad only for two days and not eligible to bring gold from abroad and not having declared the same, the 2nd respondent ordered absolute confiscation of the gold chains as well as cigarettes and also imposed a personal penalty of Rs.36,000/-. Aggrieved by the same, the petitioner preferred an appeal to the 1st respondent and the Commissioner (Appeals) by order dated 29.02.2016 held that the absolute confiscation is not warranted and set aside the order of the Lower Adjudicating Authority with regard to the gold chain and permitted redemption of the same under Section 125 of the Customs Act, 1962 on payment of fine of Rs.1,10,000/- and applicable duty. So far as the confiscation of cigarettes, the same was confirmed.
4.The petitioner submitted a representation to the 2nd respondent on 25.04.2016 seeking for implementation of the order of the Commissioner (Appeals) and also stating that he intends to re-export the seized gold. This representation was not considered and therefore, the petitioner sent another reminder on 31.05.2016. Since the petitioner was not favoured with any order, he is before this Court by way of this writ petition. 5.The learned counsel for the respondents, on instructions, submitted that as against the order passed by the Commissioner (Appeals), the Department has filed a revision petition before the Joint Secretary (Revision Application), Ministry of Finance, Department of Revenue, New Delhi and the same was forwarded on 26.05.2016. It is to be noted that the order passed by the 1st respondent is dated 29.02.
2016 and the revision application has been forwarded to the Revisional Authority only on 26.05.2016. Further, it is pointed out that the Revisional Authority is also in the cadre of the Commissioner (Appeals) and therefore, he cannot sit in judgment over the order passed by the 1st respondent.
6.Be that as it may, admittedly, as on date there is no order of stay granted by the Revisional Authority. Therefore, the 2nd respondent is bound to implement the order passed by the 1st respondent. But, however, this Court is inclined to grant some time to the Department to move an application for stay if they so desire. Accordingly, the 2nd respondent/Customs Department is granted 30 days time from the date of receipt of a copy of this order to move a stay application before the Revisional Authority and if they fail to secure any stay, on the expiry of the 30th day, the respondents shall release the gold subject to the petitioner paying the fine of Rs.1,10,000/- and the personal penalty of Rs.36,000/- and such release shall be only for re-export and not for clearance.
7.With the above direction, the Writ Petition is allowed. No costs.
Sd/- Assistant Registrar(CS VII) //True Copy// Sub Assistant Registrar sgl To
1. The Principal Commissioner of Customs, New Custom House, Meenambakkam, Chennai - 600 027.
2. The Assistant Commissioner of Customs, Anna International Airport, Chennai - 600 027.
+1cc to Mr.Hari Radhakrishnan, Advocate, S.R.No.34636 W.P.No.20259 of 2016 RP(CO) CA(12/07/2016)