BHARWANI Vs. COLLECTOR OF CUSTOMS MADRAS

JUDGEMENT

(1.) THE petitioner had come to India to show her new-born child which was only about seven months old to her parents. It is stated that her husband is well-placed in life and she was carrying sufficient funds for her stay in India with her parents. THE journey from Tokyo to Madras had taken an unduly long time and the petitioner had been re-routed through Colombo due to certain unavoidable reasons. At the time when she arrived at the Madras Air-Port, she is said to have been in a condition of exhaustion and was in a hurry to get through the Customs. She was wearing and having in the baggage, gold and diamond-studded jewellery and had not declared the same to the authorities. According to the petitioner there was no ulterior motive for the non-declaration of the jewellery. By an order dated 7-7-1989, (sic) the Additional Collector of Customs confiscated the gold jewellery weighing 52 grams valued at Rs. 4, 680 and diamond-studded jewellery valued at Rs. 25, 400 under Section 111(d) and (i) of the Customs Act, 1962 (hereinafter called "the Act"). He also imposed a penalty of Rs. 6, 000 on the petitioner, under Section 112 of the Act. It is to be noticed here that the petitioner did declare certain jewelleries, but the subject items had not been declared. It was only on an examination of the petitioner's baggage that the above jewelleries were found out. Against the order of the Additional Collector dated 7-7-1989 (sic) an appeal was filed to the erstwhile Central Board of Excise and Customs. THE Central Board having confirmed the order a revision petition was filed to the Government of India. By virute of Section 131(b) of the Act, the revision petitiion was transferred to the Customs, Excise and Gold (Control) Appellate Tribunal. By an order dated 14-10-1983, the Tribunal allowed the jewellery to be cleared on payment of fine to the tune of Rs. 7, 500, in lieuof confiscation. THE penalty was reduced from Rs. 6, 000 to Rs. 1, 500. On 26-11-1983, the petitioner wrote to the second respondent seeking return of the jewellery. By a letter dated 2-1-1984 the second respondent wrote back saying that the jewellery was not available for release, because the gold had been deposited in the Government of India Mint and the diamonds had been sold in public auction. THE letter further disclosed that they were awaiting the value of the sale proceeds to find out whether any amount was refundable to the petitioner. By a further letter dated 23-2-1984, the petitioner was informed that the total sale proceeds amounted at Rs. 34, 439. 35. THE duty recoverable on the jewellery worked out to Rs. 35, 160. Taken along with the redemption fine of Rs. 7, 500, no amount was refundable to the petitioner. It was also noticed in the letter that out of the personal penalty of Rs. 6, 000/- a refund had already been made to the extent of Rs. 4, 500, in compliance with the order of the Tribunal. THE petitioner thereupon issued a notice on 3-5-1984 seeking return of the jewellery. Unable to get any response, the petitioner has filed this writ petition seeking the issue of a writ ofmandamusto direct the respondents to give effect to the order of the Tribunal dated 14-10-1983. THE writ petition was filed on 10-2-1986.

(2.) A counter-affidavit has been filed. The material facts leading to the order of the Tribunal are not disputed. The value of the jewellery as stated in the affidavit of the petitioner is disputed. It is further stated that the gold jewellery had been disposed of in July, 1980 itself. It is only on 25-7-1983 that the second respondent received a letter from the Tribunal, enclosing a copy of the grounds of appeal. The respondents had informed the Tribunal about the disposal of the jewellery by a communication dated 18-8-1983. Prior to this letter the respondents had also informed the Government of India, by a letter C. 6/34/80 dated 10-9-1980, stating that the jewellery had been disposed of. This is because the revision petition was first filed before the Government and the Government was therefore, informed that the jewellery was not available. It is under these circumstances that the question has to be decided as to whether the petitioner is entitled to any relief.

(3.) SO far as the actual return of the jewellery is concerned, I am unable to find fault with the respondents for disposing of the same, prior to the order of the Tribunal dated 14-10-1983. This is because the respondents had informed the Government of India on 10-9-1980 itself about the disposal of the jewellery. Similarly, they had also informed the Tribunal on 18-8-1983. Therefore, the Tribunal should have been careful in passing an order directing the return of the jewellery on payment of a redemption fine of Rs. 7, 500. In other words, the Tribunal should have passed an appropriate order taking note of the disposal of the jewellery by the respondents. In this connection, the view expressed by the Bombay Tribunal inAnil T. Shettyv.Collector of Customs is quite correct and I approve of the same. A party who is seeking redress in a Court of law or quasi-judicial authority should be vigilant in protecting his or her rights. Having kept quiet [sic] after the confirmation of the order of the Additional Collector dated 7-7-1979 by the Central Board on 6-3-1980, the petitioner has to blame herself for the loss of the jewellery. Learned counsel for the respondents placed before me the records to show that the sale of the diamonds and other precious stones at Bombay was in accordance with the Rules and Regulations. Under such circumstances, I am unable to reject the contention that only a sum of Rs. 34, 439. 35 was realised as and by way of sale proceeds. But I am unable to understand as to how the second respondent is demanding a duty at the rate of 120 per cent worked out to Rs. 35, 160. A reference to the operative portion of the order of the Tribunal does not warrant the imposition of any duty as claimed by the second respondent. The operative portion is as follows :-