Decided on February 01,2021

Swadesh Chandra Paul Appellant
UNION OF INDIA Respondents


Akil Kureshi,J. - (1.) The petitioner has prayed for a direction to refund the sum of Rs.22,48,675/- with interest which according to the petitioner was the market value of 817 gm of gold as on 27.06.2016, the date on which the petitioner had applied to the Customs Authorities for releasing the gold as per the decision of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT for short).
(2.) Brief facts are as under: On a prior information of possible movement of smuggled gold of foreign origin, the Customs Authorities kept a vigil on Assam-Agartala road in the evening hours of 12th March, 2004. The Customs Authorities intercepted one Babul Roy and found on his person, hidden 7 (seven) gold bars weighing 817.700 gm. The gold was seized and the carrier apprehended. Investigation under the Customs Act, 1962 was carried out. Statements of witnesses under Section 108 of the Customs Act were recorded. Estimated value of the gold at the time of seizure was Rs.4,98,797/-. During the investigation it was revealed that the gold belonged to the petitioner Swadesh Paul. Proceedings for confiscation were initiated by the Customs Authorities which resulted into the adjudicating authority passing the order in original providing for confiscation. After one round of remand from the Tribunal, the competent authority once again passed the order of confiscation upon which the petitioner preferred appeal before the Appellate Commissioner. The Appellate Commissioner dismissed the appeal on 16.12.2013 upon which the petitioner once again approached the CESTAT. The CESTAT passed fresh order in such appeal of the petitioner on 18.04.2016. The appeal was allowed with consequential relief. Relevant portion of the order reads as under: '7. In view of the above settled proposition of law once Appellant Shri Swadesh Ch. Paul has produced the evidence of licit acquisition of 7(seven) gold bars then an enquiry was required to be made at the end of Nantu Banik, Pinky Jewellery to refute the claim of the Appellant Shri Swadesh Ch. Paul. In the absence of any such investigation claimant Shri Swadesh Ch. Paul has discharged his burden that 7(seven) gold bars seized from Shri Babul Roy belonged to him and are not of foreign origin. The only evidence in the form of first statement of Shri Babul Roy, which was also subsequently retracted, cannot be made as the sole basis to hold that the seized gold bars are of foreign origin and smuggled. 8. In view of the above observations, the Appeals filed by the Appellants are allowed with consequential reliefs, if any.'
(3.) The department did not challenge the said order of the CESTAT before the High Court and the order thus became final. The petitioner thereupon applied to the Assistant Commissioner of Customs on 27.06.2016 and raised the refund claim of Rs.22,48,675/-. This was on the basis that his appeal was allowed by the Tribunal. The order of confiscation passed by the competent authority as confirmed by the Appellate Authority was no longer valid. The gold seized did not bear any markings. Return of the gold therefore may not be feasible. According to his calculation, going by the market rate of the gold as on the said date, total value of 817.700 gm would come to Rs.22,48,675/-.;

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