Ajay Kumar Mittal, J. - (1.) THE petitioner in this petition filed under articles 226 and 227 of the Constitution of India seeks issuance of a writ in the nature of mandamus directing the respondents to return the two containers lying at Inland Container Depot (ICD), Ballabgarh and goods lying seized at its Ludhiana and Delhi godowns. A prayer has also been made to direct the respondents to refund a sum of Rs. 2 crores deposited by the petitioner. Briefly, the facts necessary for adjudication of controversy raised herein, as narrated in the petition, may be noticed. The petitioner is a private limited company. It is engaged in the business of import of fabrics. The petitioner imported a number of consignments during the years, 2008 to 2011 and paid duty as assessed by the assessing officer. On February 3, 2011, officers of the Directorate of Revenue Intelligence (DRI) searched the premises of the petitioner and found imported fabrics lying in its godowns at Ludhiana and Delhi. The DRI sealed the said godowns. Under the threat of arrest, the petitioner deposited a sum of Rs. 2 crores with the respondents. The petitioner requested for provisional release of the goods. The respondent besides seizing the goods lying in the godown, seized goods lying in two containers at ICD, Ballabgarh vide the panchnama dated March 15, 2011 and March 21, 2011. According to the petitioner, the goods lying in godowns were sealed on February 3, 2011. The period of six months of seizure was going to expire on August 2, 2011 but no notice of confiscation was served upon the petitioner. On July 29, 2011, the Commissioner of Customs -respondent No. 3 passed an order whereby the period of seizure in terms of the proviso to section 110(2) of the Customs Act, 1962 (in short, "the Act") was extended for six months. Aggrieved thereby, the petitioner filed C.W.P. No. 4327 of 2011 before the hon'ble Delhi High Court. Vide the order dated November 14, 2011, the writ petition was disposed of with a direction to the petitioner to appear before the Commissioner of Customs along with an application for provisional release and no objection certificate (NOC). Thereafter, the petitioner filed C.W.P. No. 4698 of 2011 before the Delhi High Court for release of goods but later on prayed for withdrawal of the same. As per the orders of the hon'ble Delhi High Court, the petitioner made a request for provisional release of goods and submitted that a sum of Rs. 2 crores already deposited may be considered while passing provisional release order. Respondent No. 3 did not agree with the submissions of the petitioner and vide the order dated December 30, 2011 ordered to provisionally release the goods subject to certain terms and conditions. The conditions imposed by respondent No. 3 were so harsh that the petitioner could not comply with the same. Thereafter, the petitioner filed C.W.P. No. 260 of 2012 before the hon'ble Delhi High Court. As the goods were imported through ICD, Ballabgarh and seized at Ballabgarh, the petitioner prayed for withdrawal of the writ petition with liberty to approach the appropriate court. Vide the order dated March 27, 2012, the hon'ble Delhi High Court permitted the petitioner to withdraw the petition. Hence the present petition before this court.
(2.) LEARNED counsel for the petitioner raised the following threefold submissions: (i) De -sealing of two godowns at New Delhi and Ludhiana is required to be made; (ii) Two consignments detained at ICD Ballabgarh were illegally seized. A prayer for release was made. (iii) Prayer for refund of the amount of Rs. 2 crores deposited by the petitioner was claimed on the strength of the judgment of this court in Century Metal Recycling P. Ltd. v. Union of India : [2009] 234 ELT 234 (P & H). Elaborating his submissions, the learned counsel contended that no show -cause notice has been issued to the petitioner within the extended period of six months from the date of seizure of the goods and, therefore, in terms of sections 110(2) and 124 of the Act, the petitioner is entitled for unconditional release of the goods.
(3.) CONTROVERTING the submissions made by the learned counsel for the petitioner, the learned counsel for the respondent -Department submitted that the petitioner had filed an application before the hon'ble Delhi High Court for provisional release of goods in pursuance to which an order under section 110A of the Act was passed. Once that was so, in view of the judgment of the Bombay High Court in Writ Petition No. 316 of 2008, Jayant Hansraj Shah v. Union of India, decided on February 29, 2008, the petitioner was not entitled for release of goods under sections 110(2) and 124 of the Act. The only recourse available to the petitioner was either to comply with the order of provisional release and in case, the petitioner was unable to abide by the terms of the provisional release then in view of the judgment of the Bombay High Court in Jayant Hansraj Shah's case, the prayer for return of goods unconditionally could not be made, it was also urged that the goods had been seized in respect of the petitioner and also at the godown premises of M/s. Ishita Exports which is a sole proprietorship concern whereas the petitioner is M/s. Akanksha Syntex P. Ltd. and, therefore, goods belonging to M/s. Ishita Exports could not be released.;