@JUDGMENTTAG-ORDER
V.N. Sinha, J.@mdashHeard petitioner in person and the learned counsel for the Union of India. It is submitted by the petitioner that in spite of findings recorded by the Judicial Member in paragraph nos. 3.1 and 3.2 of his order dated 19.11.2007, passed in Customs Appeal Nos. 118 and 119 of 2007, as contained in Annexure-18 to this application that the seizure of 424 grams of gold from Sri Parsuramjee and 259 grams of gold from Sri Jai Prakash Verma does not have any legal sanction as seizure was effected without following the procedure laid down u/s 103, of the Customs Act, 1962 (hereinafter referred to as the Act) and further that the seized gold was without any foreign marking and the petitioner herein should get benefit of doubt that the seized gold is of Indian origin, authorities have not chosen to release the same in his favour, although such findings have become final as the said order has not been assailed either in this Court or before any other Court of competent jurisdiction. Accordingly, prayer has been made to direct the Custom authorities to release the seized gold in favour of the petitioner. In this connection, it was pointed out that on account of successful prosecution of the custom officials by the petitioner, the custom officials had become biased and had seized 424 and 259 grams of gold belonging to the petitioner from his two employees, M/s Parsuramjee and Jai Prakash Verma when they had gone to Raxaul for getting the gold converted into ornaments from one Sri Ajay Babu. It was further asserted that the seized gold was not of foreign origin and did not have any foreign marking and seizure of the gold from the two employees of the petitioner was contrary to the procedure laid down u/s 103 of the Act as the two employees of the petitioner from whom seizure was made, never admitted that the gold was of foreign origin and smuggled in India, were never x-rayed under orders of the learned Magistrate.
2. Appreciating such illegality in the seizure effected, the Judicial Member recorded a finding that the seizure of gold from the aforesaid two employees of the petitioner was not in accordance with law as also the fact that the seized gold did not bear any foreign marking. The Judicial Member in paragraph 3.2 of his order dated 19.11.2007 further observed that the seized gold was bereft of any foreign marking and in absence of any marking to suggest that the gold was of foreign origin the petitioner should get benefit of doubt that the gold is of Indian origin.
3. Counsel for the Union of India has opposed the prayer. According to him notwithstanding the findings recorded in the order dated 19.11.2007 that the seizure was violative of the provisions contained in Section 103 of the Act as also the seized gold was bereft of foreign marking, there should not be any direction from this Court to release the seized gold in favour of the petitioner, as according to the counsel for the Union of India, matter having been remanded to the appellate authority and the appeal after remand having been again dismissed under orders dated 9.5.2008, this Court should not pass any positive order in favour of the petitioner even if the revenue has not challenged the aforesaid two findings by assailing the order of the Judicial Member dated 19.11.2007. In this connection, he referred to sub-section (8) of Section 103 of the Act. For ready reference, subsection (8) of Section 103 is quoted hereinbelow:-
"Nothing in this section shall apply to any person referred to in subsection (1), who admits that goods liable to confiscation are secreted inside his body, and who voluntarily submits himself for suitable action being taking for bringing out such goods."
True it is that the learned Judicial Member under orders dated 19.11.2007 has remanded the matter to the appellate authority for enabling the appellate authority to hear the petitioner as he could not respond to the summons issued for completion of investigation and to decide the lis between the parties, after taking into account the evidence, which is admissible in law, but thereunder the authorities were never allowed liberty to reconsider the findings that the seizure of 424 and 259 grams of gold from M/s Parsuramjee and Jai Prakash Verma was violative of the provisions contained in Section 103 of the Act and that the gold seized was not of Indian origin. In the event the authorities desired to question the aforesaid two findings, they should have challenged the order dated 19.11.2007. Having accepted the order dated 19.11.2007, the authorities, in the opinion of this Court, should restrain themselves from questioning the aforesaid two findings that the seizure of the gold was violative of the provisions contained in Section 103 of the Act as also that the gold was of Indian origin. Once the authorities below have accepted the aforesaid two findings, according to this Court, they are duty bound to release the seized gold in favour of the petitioner and in the event they have already sold the seized gold then the present value thereof must be reimbursed to the petitioner as early as possible, in any case within three months from today and with this direction, this writ application is disposed of.
