Jitendra v. The Union of India

Judge of this Court in C.W.J.C. No.3479 of 2002 (Jitendra Bothra V. Union of India & Ors.), whereby the writ petition has been allowed, the order of the Customs, Excise & Gold (Control )Appellate Tribunal dated 28.3.2003, has been upheld, and has directed for refund of Rs. 4,48,500/- to the respondent herein with interest.

2. A brief statement of facts essential for the disposal of this appeal may be indicated, and are not in dispute. A consignment of 230 bags (17020 K.G) of betel-nuts were booked at Falakata, a place in the north-east in India, on 13.10.2001, the respondent herein being the consignee. The same was being transported by a truck which was intercepted at Barauni on 16.10.2001. It was brought to Patna, and the goods-laden truck was seized in Patna on 17.10.2001. Application was 2 filed before the departmental authorities for release of the truck and goods which remained unattended. In view of the inaction on the part of the authorities, the respondent herein preferred the said C.W.J.C. No. 3479 of 2002. Pending final adjudication of the writ petition the authorities were directed to consider the documents produced by the respondent. By order dated 13.9.2002, passed by the learned Commissioner of Customs, Patna, final adjudication of the matter on merits was made. The operative portion of the said order is setout hereinbelow: “ Having regard to the facts and circumstances of the case, I hereby order that- (I) Seized 230 bags of betel-nuts weighing 17020 kgs covered by Bill No. MTC/001/2001 dated

13.10.2001 of Mahabir Trading Co., Falakata Branch Office (non existent firm) valued at Rs.17,02,000/- stands confiscated absolutely under Section 111(d) of the Customs Act 1962. (II) Seized truck bearing Regd. No. NL-01A- 4674 is confiscated under Section 115(2) ibid with option to its registered owner who happened to be Noticee No.5 to redeem the same on payment of Redemption fine of Rs. 3 lakhs (Rupees Three lakhs only). This option must be exercised within 45 days of receipt of this order, otherwise it would be auctioned in favour of the Government (III) (i) I further hereby impose a penalty of Rs.50,000/- (Rupees Fifty thousand only) on said Sri Manan Singh (Noticee No.11) under Section 112(a) of the Customs Act 1962, and A penalty under Section 112(b) of the Customs Act 1962 on- 3 (ii) Sri Jitendra Bothra (Noticee No.4) for Rs.5 lakhs (Rupees Five lakhs only). (iii) Sri Manjit Singh (Noticee No.5) for Rs. 3 lakhs (Rupees Three lakhs only).”

3. The aggrieved persons preferred three separate appeals before the Customs, Excise & Gold (Control) Appellate Tribunal, East Zonal Bench, Kolkata, which were numbered as Appeal nos. C-376- 378/02. The appeals were allowed in full by a common order dated

28.3.2003, wherein it has been held that betel-nut is an agricultural product which is grown in plenty in the north-eastern region of India. The Revenue can seize and confiscate the same only if it is able to establish that the seized betel-nuts were of foreign origin. The learned Tribunal has further held that Revenue has not been able to establish that the consignment was of foreign origin. The learned Tribunal has also held that betel-nuts are non-notified items under the provisions of Section 123 of the Act. Therefore, a very heavy onus lies on the Revenue to establish that the same was of foreign origin which has not been discharged. Consequently, the order of learned Commissioner, Customs, Patna, was set aside.

4. Aggrieved by the order of the learned Tribunal the Revenue preferred Tax Case No. 3 of 2004(Commissioner, Customs Department Vrs. Jitendra Bothra) in this Court after a delay of 10 months. The same has been taken up analogous with the present appeal and has by the order dated 6.7.2009, on the prayer of learned counsel for the Revenue, been dismissed as withdrawn.

5. C.W.J.C. No.3479 of 2002 remained pending in this Court. The same was allowed by the impugned order with costs. The Revenue 4 has been directed to refund the sum of Rs. 4,48,500/- with interest at the rate of 12% within two weeks. Aggrieved by this order, the Revenue has preferred the present appeal.

6. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to us on a perusal of the order on the writ petition that the only point taken before the learned Single Judge by the Revenue was that it has preferred the aforesaid Tax Case No. 3 of 2004, which was still pending on the date of the disposal of the writ petition. As stated hereinabove, in view of the earlier decisions of this Court, the Revenue has withdrawn the Tax Case, as a result of which the order of the learned Tribunal has attained finality. In the result, the present appeal is fit to be dismissed. We entirely agree with the order of the learned writ court, and the reasons assigned by it.

7. The present appeal is accordingly dismissed. The authorities shall refund Rs. 4, 48, 500/- with interest at the rate of 12% with effect from 16.10.2001, till the date of payment, along with costs quantified at Rs.25,000/-, all to be paid together to the respondent. ( S. K. Katriar ,J. ) Vinay/ ( Jyoti Saran, J.)