Case Law Details
Raphy P. J Vs Union Of India (Kerala High Court)
Conclusion: Gold and gold items seized from assessee were to be released after the orders-in-original had been passed in favour of assessees, on furnishing securities other than bank guarantees and execution of the bonds to the satisfaction of proper customs authority. However, the said release should be subject to the outcome of any appeal filed by the Department against the orders in original.
Held: The writ petition had been filed by assessee for a writ of mandamus to command the Respondent to release the gold seized from them in pursuance of the Order passed by the Joint Commissioner in adjudication proceedings. Respondent Authority submitted that the orders passed by the Joint Commissioner in adjudicatory proceedings had not been accepted, and the Department was filing appeals against the said orders along with the application for a stay of the orders passed by the Joint Commissioner. The Department was, therefore, not releasing the seized gold on the ground that the adjudicatory orders had not been accepted, and the Department was filing the appeals along with the stay applications. Assessee submitted that the Supreme Court and various High Courts had repeatedly held that mere filing of the appeals against the adjudicatory order could not entitle the Department to not release the seized goods. It was held that taking into consideration the interim orders, these writ petitions were disposed of and it was provided that the gold and gold items seized from assessee were to be released after the orders-in-original had been passed in favour of assessees, on furnishing securities other than bank guarantees and execution of the bonds to the satisfaction of proper customs authority. However, the said release should be subject to the outcome of any appeal filed by the Department against the orders in original.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
The present writ petitions have been filed for release of gold and gold items after orders in original have been rendered in favour of the petitioners. This Court in some of the writ petitions, granted the following interim order:
“1. The writ petition has been filed by the petitioner for a writ of mandamus to command the 2nd respondent to release the gold seized from them in pursuance of the Order dated 07. 06.2023 passed by the Joint Commissioner in adjudication proceedings.
2. The learned Counsel for the respondent Authority submits that the orders passed by the Joint Commissioner in adjudicatory proceedings have not been accepted, and the Department is filing appeals against the said orders along with the application for a stay of the orders passed by the Joint Commissioner. The Department is, therefore, not releasing the seized gold on the ground that the adjudicatory orders have not been accepted, and the Department is filing the appeals along with the stay applications.
3. The learned Counsel for the petitioner submits that the Supreme Court and various High Courts have repeatedly held that mere filing of the appeals against the adjudicatory order could not entitle the Department to not release the seized goods.
4. I have considered the submissions. Admittedly, the time prescribed for filing the appeals is not yet over. The learned Counsel for the Customs Authority submits that the appeals are being filed shortly against the adjudicatory orders along with the application for interim relief by the Department.
5. Considering the aforesaid submission, it is directed that if the Department does not get the interim order in the appeals filed against the adjudicatory order within a period of three weeks from today, the seized gold of the petitioners shall be released on taking bonds and securities for the said purpose from the petitioners without insisting upon furnishing Bank Guarantees.”
2. It is submitted that in pursuance of the interim orders, petitioners have executed the bond and furnished securities other than bank guarantee for release of the gold to the satisfaction of the competent customs authority and gold/gold items are in the process of being released in favour of the petitioners.
Considering the aforesaid, and taking into consideration the interim orders, these writ petitions are disposed of and it is provided that the gold and gold items seized from the petitioners are to be released after the orders-in-original have been passed in favour of the petitioners, on petitioners furnishing securities other than bank guarantees and execution of the bonds to the satisfaction of proper customs authority. However, the said release shall be subject to the outcome of any appeal filed by the Department against the orders in original.
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