2016 (12) TMI 1502 - HC - Customs

Court Orders Release of Detained Gold for Re-export with Conditions

Rafeeq Ahmed Mustafa Versus Assistant Commissioner of Customs, Chennai

The court found the respondent's failure to implement the appellate order without obtaining a stay unjustifiable. It directed the release of detained gold ... Release of detained goods - implementation of order of commissioner of customs - principles of judicial discipline - 4 No's gold bars totally weighting 400 grams of gold - Held that: - Once the appellate authority, namely, the Commissioner of Customs has passed the order on 30.06.2015 and without obtaining any order of the stay of the appeal, the respondent should not keep themselves by disobeying the order passed by the appellate authority. Reliance was placed in the case of Union of India vs. Kamalakshi Finance Corporation [1991 (9) TMI 72 - SUPREME COURT OF INDIA], where it was held that the respondent failed to respect the order of the Apex Court and failed to implement the order shows contempt of Court - The Hon'ble Apex Court and this Court in various cases very categorically held that the order of the Joint Commissioner of Customs and the Commissioner of Customs (Appeal) clearly shows that the petitioner has not committed any violation, therefore, they should implement the order of the Commissioner of Customs in a true letter and dispute. Even mere filing of the revision against the order of appellate authority would not empower the respondent to deny release of the goods in question and the respondent have not given any proper explanation as to why no stay order has been obtained against the order of the Commissioner of Customs (Appeals) dated 30.06.2015, even though the said order said to have been challenged by way of further appeal. Respondent was directed to release the goods - petition allowed - decided in favor of petitioner. Issues Involved:1. Detention and confiscation of goods (gold bars) by Customs.2. Redemption fine and penalty imposed by the Joint Commissioner of Customs.3. Modification of the order by the Commissioner of Customs (Appeals).4. Non-implementation of the appellate order by the respondent.5. Filing of revision and stay petition by the respondent.6. Judicial discipline and adherence to appellate orders.Detailed Analysis:1. Detention and Confiscation of Goods:The petitioner, upon arrival from Singapore, was intercepted by Customs at Chennai International Airport, leading to the detention of 400 grams of gold valued at Rs. 9,88,000/- for adjudication. The Joint Commissioner of Customs confiscated the goods under Section 111(d) and (I) of the Customs Act read with Section 3(3) of the Foreign Trade (Development & Regulation) Act, 1992.2. Redemption Fine and Penalty:The Joint Commissioner allowed the petitioner to redeem and re-export the goods upon payment of a redemption fine of Rs. 3,50,000/- and imposed a penalty of Rs. 90,000/- under Section 112(a) of the Customs Act by an order dated 28.03.2015.3. Modification by Commissioner of Customs (Appeals):The petitioner appealed the Joint Commissioner’s decision. The Commissioner of Customs (Appeals) modified the order by reducing the redemption fine from Rs. 3,50,000/- to Rs. 2,00,000/- by an order dated 30.06.2015.4. Non-Implementation of Appellate Order:Despite the appellate order being delivered to the petitioner on 16.08.2015, the respondent failed to implement it. The petitioner argued that no revision or stay was obtained by the respondent against the appellate order, thus necessitating its implementation. The petitioner cited multiple precedents supporting the necessity of adhering to appellate orders.5. Filing of Revision and Stay Petition:The respondent claimed a revision and stay petition under Section 129DD of the Customs Act, 1962, was filed and pending, thus arguing the writ petition was not maintainable. However, the respondent failed to provide proof of notice or hearing dates from the revisional authority.6. Judicial Discipline:The court emphasized the importance of judicial discipline, stating that subordinate authorities must unreservedly follow appellate orders unless a stay is obtained. The court referenced several judgments, including Union of India vs. Kamalakshi Finance Corporation, which underscored that mere filing of an appeal does not operate as a stay and that authorities must implement appellate orders unless stayed by a competent court.Conclusion:The court concluded that the respondent’s failure to implement the appellate order without obtaining a stay was unjustifiable. The petitioner could not be made to suffer due to the prolonged detention of goods, which would deteriorate in value. The court directed the respondent to release the gold for re-export, subject to the petitioner complying with the conditions imposed by the Commissioner (Appeals) and providing an undertaking to comply with the Order in Original if the Department succeeded in the revision. The court also directed that the main revision petition be disposed of within eight weeks if no stay was in place.