LAKSHMANAN, C. J. - (1.) THE matter arises in a short compass. THE petitioner has filed the present writ petition for a mandamus to direct the Commissioner, Customs and Central Excise, Jaipur to handover the currency of Rs. 10,49,000/- together with interest @ 18% per annum commencing from the date of seizure i. e. 5. 5. 1993 to the petitioner. THE facts of the case are that while the petitioner was travelling, the local police of Beawar stopped the Maruti Van and after search of luggage they seized indian currency amounting to Rs. 10, 49, 000/- and also the Maruti Van. After handing over the currency and the Maruti Van, to the Customs Department, the Customs Department, in turn, seized the currency and the Maruti Van and issued a show cause notice to the petitioner under Section 124 of the Customs Act. Statement of the petitioner under Section 108 of the Customs Act was recorded wherein he submitted that the currency seized from him was not at all tainted and the same was being brought to Beawar for purchase of a plot. THE petitioner denied that the currency was the sale proceeds of smuggled silver. However, the second respondent Commissioner (Customs), Jaipur vide his order dated 26. 3. 1996 confiscated the currency amounting to Rs. 10,49,000/ -. Being aggrieved with the order of confiscation, the petitioner filed an appeal before the Central Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as the CEGAT') which was numbered as C/166-167/96-NB of 1996. This appeal was allowed vide order dated 24th of July, 1998 (Annexure- A ). Consequently the order of absolute confiscation regarding Indian Currency of Rs. 10,49,000/- was set aside by the CEGAT. THEreupon the petitioner approached the second respondent and other functionaries of the Customs Department for handing over the currency to him but there was no response. Again the petitioner sent a notice by way of demand of justice to the second respondent on 22nd of October, 1998 under Registered Post. Inspite of notice of demand of justice, the orders passed by the CEGAT have not been complied with which compelled the petitioner to file the present writ petition for mandamus directing the second respondent to return the currency seized from him.
(2.) A reply affidavit is filed by the respondents. It is relevant to reproduce para 2 of the reply affidavit filed by the respondents: "that the seized Indian currency amounting to Rs. 10,49,000/- and Maruti Van were absolutely confiscated by the Commissioner, Customs and Central Excise, Jaipur vide order in Original No. 8/96 dt. 25. 3. 1996. Aggrieved by this Order, Svs. Ranglal and Rajesh Jain filed an Appeal before the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi against the order passed by the Commissioner, Customs and Central Excise, Jaipur. The learned Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi vide its final order No. A/663-664/98-NB (DB) dt. 24. 7. 97, set aside the Order of the Commissioner, Customs and Central Excise, Jaipur. The final order passed by the learned Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi has been accepted by the Commissioner, Customs, Jaipur. In view of the order passed by learned Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi, the Indian Currency was to be released to the party. However, now the Income-tax Department have approached Additional Commissioner, Customs and served a Warrant under section 132 A of the Income-tax Act and in term of the Warrant, the currency is required to be handed over to them for taking action under Income-tax Act. Under these circumstances, the petitioner has filed the present writ petition seeking Mandamus against authorities of Customs Department for handing over impugned currency of Rs. 10,49,000/- along with interest. " Thus, it is argued on behalf of the respondents that since the Income-tax Department has served a notice under Section 132a of the Income Tax Act on 2nd of February, 1999 to the Customs Department to handover the seized currency, the Customs Department is not in a position to return the amount to the petitioner and that the second respondent has no other option but to obey the warrant issued to him under Section 132a of the Income-tax Act. We have heard Shri SR Bajwa, learned Sr. Counsel appearing for the petitioner and Shri Bhanwar Bagari, Sr. Standing Counsel for the respondents. We have also perused the order dated 26. 3. 1996 passed by the Commissioner, Customs and Central Excise, Jaipur which was later set aside by the CEGAT vide order dated 24. 7. 1998. It is seen from the order passed by the CEGAT that statement of Shri Ranglal, the petitioner herein was recorded under Section 108 of the Customs Act and in his statement he submitted the currency was for the purchase of a plot. The statement was made on 29. 3. 1995. He denied the sale of smuggled silver. Shri Rajesh Jain was the owner of the Van. In his statement under Section 108 of the Customs Act, this person Rajesh Jain has submitted that he was the owner of the Maruti van and Shri Rang Lal borrowed his van for going to Mewar. He denied the knowledge of use of the van in transporting the silver by Shri Ranglal. A show cause notice was issued to the petitioner and after the adjudication, the Commissioner passed the order dated 26th of March, 1996. The CEGAT after considering the rival submissions passed the order as follows:- "thereafter on 29. 3. 95, i. e. almost after two years, statement of Shri Rang Lal under Section 108 of the Customs Act was recorded by the Customs authorities and in his statement he denied that currency in question was sale proceeds of smuggled silver. He admitted that currency in question was for purchase of plot. Before the police the appellants produced certain receipts in respect of the import of silver by one Shri Bhaskar and Narain Kana. These receipts were alleged to be torned by Shri Govind Lal. The receipts show the import of the silver through Bombay Air Port Customs. No inquiry was made from the persons, whose names were mentioned in the receipt, in respect of the sale of silver to the appellant by them. The currency was seized on 5. 5. 93 and the statement of Shri Ranglal was recorded by the Customs authorities under Section 108 of the Customs Act almost after two years i. e. on 29. 3. 95. In his statement he denied that he has sold smuggled silver to the Hanuman Prasad. The appellant also submitted that the statement that the currency in question is sale proceed of smuggled silver before the police was taken under duress. In respect of Rajesh Jain, there is no evidence on record to show that he was connected with the sale of the silver except that he had given his van to Shri Rang Lal who was close relative of Rajesh Jain. The Tribunal vide Final Order No. A/2182/96-NB dated 27. 8. 96 in Appeal No. C/118/96 had quashed the penalty imposed upon Shri Hanuman Prasad Agarwal to whom it was alleged that appellant had sold the smuggled silver on the ground that no investigation was conducted from Hanuman Prasad Agarwal. Even his statement was not recorded under Section 108 of the Customs Act. In view of the above mentioned facts and in view of the earlier decision of the Tribunal in the case of Hanuman Prasad Agarwal, we find that there is no sufficient evidence on record to prove the allegations made against the appellants. Consequentially the impugned order in respect of both the appellants is set aside and the appeals are allowed. " It is also seen from the above order that on 5. 5. 1993 Indian currency amounting to Rs. 10,49,000/- was recovered by the police. Ranglal, the petitioner herein made a statement before the police that they had purchased the silver from the persons who had legally imported the same from Dubai and had cleared the same after payment of Customs duty and he sold the silver to Shri Hanuman Prasad and the Indian currency in question was sale proceed of that silver. It is thus, seen from the order passed by the CEGAT that there is no sufficient evidence on record to prove the allegation made against the petitioner. Consequently, the CEGAT allowed the appeals and the order passed by the Commissioner, Customs confiscating the currency amounting to Rs. 10,49,000/- was set aside. In the writ petition, an additional affidavit was filed by the petitioner herein along with certain documents. In the additional affidavit, it is categorically stated that the petitioner was being assessed for tax by the Income Tax Officer `a' Ward, Ratlam under G. I. R. No. R-1056. It is also stated that the petitioner is a permanent resident of House No. 101, infront of Jain School, Sangod Road, Ratlam (M. P.) and that he had filed regular returns up to assessment year 1993-94 and had been paying the tax regularly since 15 years prior to the assessment year 1993-94. It is submitted that one Shri P. C. Hadia of Income Tax Department had issued an authorisation under Section 132 (1) (A) of the Income Tax Act regarding the cash amount of Rs. 10,49,000/ -. The petitioner had on 24. 6. 1993 informed the said officer in writing that the petitioner was regularly assessed by the Income Tax Officer, Ratlam (M. P. ). In support of the said contention, the petitioner has filed a copy of the letter dated 24. 6. 1993 (Annexure-C), which reads thus:- From Shri Ranglal Sujanmal Mahajan, Sangod Road, Opposit Jain School, RATLAM (M. P.) To, The Commissioner of Income Tax, Jaipur. KIND ATTENTION : SHRI P. C. HADIA Dear Sir, Re : Authorisation U/s 132 (A) (1) of Income Tax Act. . . . . . . I, Ranglal S/o Sujanmal of Ratlam have to submit as under:- 1. That I reside in Ratlam (MP) and carry on business at Ratlam. I am assessed to Income Tax by Income Tax Officer Ratlam on GIR No. R-1056. 2. That I have filed my Income Tax Returns up to Assessment year 1993-94. 3. That I wanted to purchase plots in Nanesh Nagar, Beawar and for that purpose I deposited advance of Rs. 50,000/- on 26. 3. 1993 with Dalal Gulabchand S/o Ramnarayan Beawar who asked me to come after a month or so with full amount. 4. That on 4th May 1993 I went to Beawar taking Rs. 10,00,000/- with me but deal could not be finalised as the seller's were demanding high rates. I therefore, took back 50,000 which was advanced by me on 26. 3. 1993 and was returning back to Ratlam by car on the night of 4. 5. 1993 when Police Inspector Beawar stopped the car and made a search. He took me to Police Station where Rs. 10,49,000/- were seized from me. 5. That this case is pending before Apar Mukhia Nyayik Dandnayak, Beawar and case is fixed on 30. 6. 1993. 6. That in the meantime your honour has issued on 26. 5. 1993 warrant of authorisation U/s. 132a (1) of Income Tax Act in form 45c and in that connection Income Tax Officer Beawar has also submitted an application dated 27. 5. 1993. Copy of these are enclosed for your perusal please. 7. That Rs. 10,49,000/- seized by the police at Beawar represent cash balance as per my books of Account regularly maintained and I am prepared to produce them whenever your honour directs. 8. That I request your honour not to seize my amount when released by the police authorities as it will unnecessary put me into hardships. 9. That since I am regularly assessed by Income Tax Officer, Ratlam (M. P.) my case records be transferred to Commissioner of Income Tax Bhopal under whose jurisdiction Ratlam Income Tax Officer is working. 10. It will save me from attending the hearing at Beawar so many times. Beawar is more than 300 Kms. away from Ratlam. I, therefore, request you to kindly sympathetically consider my position and if your honour feels I am prepared to attend your office. Thanking you. "
(3.) ON 18. 1. 1999, the Deputy Director, Income Tax, Indore issued summons u/sec. 131-1a of the Income Tax Act to the petitioner regarding seizure of Indian currency amounting to Rs. 10,49,000/- from the petitioner on 5. 5. 1993. The petitioner has placed on record a copy of the summon dated 18. 1. 1999 as Annexure-D. The Central Board of Direct Taxes, Government of India vide order dated 22nd of February, 2000 directed the Chief Commissioner of Income Tax, Bhopal to take necessary action and send a report within 20 days in respect of grievance raised by the petitioner vide his application dated 27th of December, 1999. Photo copies of the application dated 27th of December, 1999 as well as the order dated 22nd of February, 2000 are placed on record as Annexures-E and F respectively. It is also pertinent to notice that the order passed by the CEGAT in C/166-167/96-NB (DB) dated 31. 8. 1998 was not taken on appeal by the department and that the said order has become final and conclusive. When this order was brought to the notice of Shri Bhanwar Bagri, learned counsel appearing for the respondents, he submitted that in view of the order passed by the CEGAT the currency amounting to Rs. 10,49,000/- was to be refunded to the petitioner as soon the final order of the CEGAT has been accepted by the Commissioner, Customs Department, Jaipur and that the currency was to be released to the party. However, since the Income Tax Department had approached the Additional Commissioner, Customs Department and served a warrant u/s. 132a of the Income Tax Act and in terms of the warrant, the currency was required to be handed over to the Income Tax Department for taking action under the Income Tax Act. We are unable to appreciate the stand taken by the respondent department. In this case, the Indian currency amounting to Rs. 10,49,000/- was seized from the petitioner and the Commissioner, Customs Department has passed the order confiscating the same for the reasons recorded in its order. However, the said order was set aside by the CEGAT. Under such circumstances, the Customs Department is duty bound to refund the amount to the petitioner atleast immediately after the order passed by the CEGAT. However, the amount has not been refunded and unlawfully and unjustly retained by the department thereby denying the use of the said amount by the petitioner, which compelled the petitioner to come before this Court by filing this writ petition for mandamus. In Bhopal Sugar Industries Ltd. vs. Income Tax Officer, Bhopal (1), (five Judges Bench), their Lordships of the Supreme Court have considered an identical matter for issue of mandamus as prayed for in that case and after considering the matter, their Lordships have issued a mandamus against an Income Tax Officer who refused to carry out the clear and unambiguous directions of the Appellate Tribunal, given to him by its final order. In this case, the High Court refused to issue a writ of mandamus on the ground that no manifest injustice had resulted from the said refusal. The Supreme Court while reversing the order of the High Court held that the Income Tax Officer had refused to carry out the clear and unambiguous directions which a superior Tribunal had given to him by its final order in exercise of its appellate powers in respect of an order of assessment made by him, such refusal is in effect a denial of justice and is further more destructive of one of the basis principles in the administration of justice based as it is on the hierarchy of Courts. In such a case a writ of mandamus should issue ex debito justitiae to compel the Income Tax Officer to carry out the directions given to him by the Income Tax Appellate Tribunal. Their Lordships of the Supreme Court have also held that the High Court would be clearly in error if it refuses to issue a writ on the ground that no manifest injustice had resulted from the order of the Income-tax Officer in view of the error committed by the Tribunal itself in its order. Such a view is destructive of one of the basic principles of the administration of justice. In a very recent judgment (Northern Plastics Ltd. vs. Collector of Customs and Central Excise (2), their Lordships of the Supreme Court have discussed and decided the case as under:- "it was contended by Mr. Dave that the applicants are not liable to pay any duty as the goods were not cleared by the respondent and they were subsequently confiscated and sold by the respondent and, therefore, the applicants cannot be said to have imported the goods. On the other hand, it was contended by Mr. C. S. Vaidyanathan, learned Additional Solicitor General that the import of the goods was by the applicants and as soon as the said goods handed on the land mass of India proper amount of duty became payable thereon. In our opinion, Mr. Vaidyanathan is right in his submission particularly when full impact has to be given to the order passed by us declaring retention and confiscation of the goods to be illegal. Mr. C. S. Vaidyanathan, learned Additional Solicitor General, however, further submitted that the value of the goods as shown in the import documents was only Rs. 33. 04 lakhs and as the duty and the warehousing charges payable are more than the said amount, the applicant is not entitled to recover anything from the respondent. What is overlooked by the learned counsel is the consequence of setting aside the order of confiscation on the ground that it was illegal. The applicant has become entitled to the value of the goods as on the date or time when the goods ought to have been cleared by the respondent for home consumption. If the value of the goods in India after importation and payment of duty, in January 1989, was Rs. 33. 04 Lakhs only then the applicant, and for that matter any sensible person, would not have imported the goods at all. It would be reasonable to presume that an importer would have imported the goods of the value of Rs. 33. 04 lakhs if its value in the Indian market at the relevant time was more than the CIS value of the goods plus the duty payable thereon (Rs. 33. 04 lakhs + 47. 07 lakhs = Rs. 81. 11 lakhs ). It is also not the stand of the respondent that such goods were available in the Indian market at that time at a lesser price. Therefore, it is now the obligation of the respondent to return at least Rs. 80. 11 lakhs- 47. 07 lakhs, the amount of duty payable thereon. As the applicant has been deprived of the use of the goods worth Rs. 33. 04 lakhs the respondent is under a legal obligation now to refund that amount to the applicant. The respondent cannot now be permitted to take the advantage of his own wrong and contend that the value of the goods should be determined only at Rs. 48. 50 lakhs inclusive of its value and the amount of duty payable thereon because they could be sold at that price only. We also cannot accept the contention of the learned counsel for the respondent that if the applicant has suffered any loss as a result of the wrongful act of the respondent then he should file an action in tort and this Court cannot order payment of any amount in these applications. No doubt it would be open to the applicant to initiate such an action if it feels that the loss suffered by it is more than Rs. 33. 04 lakhs. Merely because it is open to the applicant to initiate such an action it would not be just and proper to refuse the claim made in these applications as in any case the applicant is entitled to return of the money value of the goods which were illegally confiscated by the respondent. Even though the applicant has claimed interest @ 21% we do not think it proper to award interest at such a high rate and considering the facts and circumstances of the case it would be in the interest of justice if the respondent is directed to return the amount of Rs. 33. 04 lakhs with interest at the rate of 12% from 1. 2. 1989 till the date of payment as the Collector by his order dated 31. 1. 1989 had held that the goods were properly described and the import was legal. " ;