Judgment:
Rajesh Balia, J.
1. We have heard the learned Counsel for the parties.
2. Through this writ petition, the petitioner seeks mandamous against the respondents to quash the communication dated 2.6.2005 (Annexure 16) and to direct the respondents to pay the petitioner interest at the rate of 18 per cent on the money equivalent to the value of 85 bars of silver from 14.8.1997 till 18.1.2005. The market value of silver bars weighing 2910.550 Kgs as on 14.8.1997 is stated to be Rs. 2,13,77,990/- at the rate of Rs. 7345/- per kg.
3. Facts of this case are that 85 bars of silver were seized from the father of the petitioner in the search conducted at his premises on 3.8.65 and 8.8.65 under Section 110 of the Customs Act, 1962 and the same were deposited in Treasury at Chittorgarh. Proceedings under the Treasure and Trove Act, 1878 and the Customs Act followed successively. The father of the petitioner claimed that he had acquired 85 silver bars more than 30 to 35 years before seizure lawfully and that he had not contravened any of the provisions of the Customs Act so as to suffer confiscation of said silver bars. He had also contested the proceedings under Treasure and Trove Act. The proceedings under the Treasure and Trove Act were held to be not sustainable by this Court in D.B.C. Writ No. 705/76 and 838/76 on 3.11.92 SLP against, which was also dismissed.
4. The proceedings under Customs Act finally terminated in favour of the petitioner.
5. The Central Excise and Gold Control Appellate Tribunal vide its order dated 14.8.97 relying on the finding reached under the proceedings of Treasure and Trove Act and Wealth Tax Act concluded that the silver bars in question had been acquired by the father of the petitioner prior to imposition of the restriction vide Notification issued in the year 1948 on import of silver. Consequently, he was entitled to return of silver on confiscation order was found unsustanable. The order of CEGAT was passed on 14.8.97 while holding in favour of the petitioner CEGAT directed the consequential relief to the present petitioner in accordance with law.
6. Soon after the order of the CEGAT the petitioner applied for return of said silver bars vide letter dated 12.9.97.
7. However, Revenue had preferred an application under Section 130 of the Customs Act for making reference to this Court about the Finding reached by the Tribunal for challenging the same. The Reference Application was rejected on 17.1.98, which led to filing an application under Section 130 of the Customs Act, 1962 before this Court which was registered as Commissioner of Central Excise v. Gunwant Lal D.B. Tax Reference Application No. 21/2003. Due to persuit of said proceedings the silver bars had not been returned to the petitioner.
8. Prior to that the petitioner has preferred a writ petition bearing D.B.C. Writ Petition No. 136/99 seeking a mandamous for return of silver in pursuance of the directions contained in order of CEGAT.
9. Since both the matters were interconnected, they were heard in succession. On 30th October 2003 this Court decided the reference application by holding that the findings recorded by the Tribunal were findings of facts and no question of law arose out of the order of the Tribunal. Accordingly, application was dismissed.
10. Pursuant to aforesaid judgment the D.B. Civil Writ Petition No. 136/99 was allowed on 4th November 2003 by this Court and directed the respondents to return the said silver bars to the petitioner.
11. The order of this Court rejecting reference application was subject matter of appeal before the Supreme Court and S.L.P. was granted. Ultimately said appeal came to be decided only on November 3, 2004 and appeal was rejected. Since appeal was rejected, another application was moved for return of silver bars to the petitioner vide letter dated 23.11.04 and ultimately silver bars were returned to the petitioner on 18.1.2005.
12. After receipt of the silver bars, the petitioner made an application through his Lawyer vide Annexure-15 dated 15th May, 2005 lodging claim to interest at the rate of 18% on the market value of 85 silver bars as on the date of order passed by the CEGAT in appeal which request was turned down by the respondents vide communication dated 2.6.2005 (Annexure 16).
13. It is in the wake of aforesaid sequence and events this writ petition is filed for claiming interest on the market value of 85 silver bars from the date of order of CEGAT dated 14.8.97.
14. Learned Counsel for the petitioner has placed reliance on two decision one of the Supreme Court reported in : 1999ECR826(SC) Northern Plastics Ltd. v. Collector of Customs and Central Excise and second a bench decision of this Court reported Ranglal v. Union of India, to contend that where confiscation of commodities is held to be illegal on the return of such commodities, the owner is entitled to be compensated by way of interest for such illegal detention.
15. On the other hand, it is contended by the Revenue that there has been no prayer by the applicant and no direction by the Court at any stage for compensating the petitioner by way of interest chargeable on money value of the silver, seized during search proceedings. Therefore, they would not be liable to pay the same. Silver having been returned soon after the decision of Supreme Court dated 3.11.2004 it cannot be said that the respondents were not acting in bona fide in pursuing their remedies and retaining silver until final out come of lis. The fact that it was ultimately held by this Court that the findings recorded by the Tribunal were finding of fact and not open to be examined by the High Court or Supreme Court under the provisions of Customs Act, wherein reference could be made only of question of law is no reflection or bona fide claim of the revenue for litigating the matter until it is finally disposed of by the Supreme Court. It was also urged when the commodity itself has been returned intact, which is not subject to decay and depreciation no compensation for delayed return of commodity like silver can be claimed in the form of interest on assumed price of silver on a given date.
16. Having heard the learned Counsel for the parties and considered the precedent cited before us, this petition must fails.
17. The petitioner is laying claim to the interest in respect of the commodity which has been returned to him. There is no authority for allowing the interest on money value of commodity which has been returned to owner. The petitioner is not deprived of any money owned by him which has been used by the respondents for their own purpose so as to demand interest thereon general principle to compensate plaintiff who has been deprived of his money's use by defendant for his own use, which is the basic foundation for allowing interest on any money claim prone to decay and depreciation. It is necessitated that to safeguard the interest of either parties from such deterioration of seized commodities, law usually authorises the Competent authority to dispose of such commodities with reasonable time and retain the realisation until final outcome of the proceedings. In such cases ordinarily money so realised if ultimately found to be refundable the same is required to be returned to owners of commodities with interest.
18. However, these principles do not apply on their own face on seizure of commodity like silver which is neither subject to decay nor depreciation in regard to its quality and use with passage of time. The petitioner's case does not come under any of the principles.
19. In the case of commodity, the principle is well settled that if exercise of power in respect of such goods is authorised by law which is ultimately found to be not sustainable on facts, no other consequence can follow except one provided by law.
20. The principle may be stated that in the case of seizure of commodity which ultimately is found to be not sustainable on facts unless it is found that officers have acted beyond their authority, and did not act bona fide, no other consequence follow except one provided by law. The officers, acting bona fide in exercise of their authority under the province of law, even exercise of power ultimately fails, are protected from any action against them. However, when their action is found to be unauthorised beyond the authority conferred upon them and exercise of power is not bona fide, the protection to officers acting in official capacity is not available and they may be held liable for any loss caused to a person due to their wrongful exercise of power. In the instant case laying claim to interest on the principle of indemnifying the owner of the commodity against damages, if any caused due to mere erroneous exercise of power is not sustainable being contrary to statutory protection extended to bona fide exercise of power.
21. So far as two cases relied by the petitioner are concerned, both the cases related to allowance of interest on detaining of money to the owner of the goods.
22. Supreme Court in the case of Northern Plastics Ltd. v. Collector of customs, (supra) held considering the case where customs has disposed of the goods, during the pendency of the proceedings and realised money. It became a case of refund of money which was realised by the Revenue by disposing of imported goods under the Customs Act under the order of confiscation which was held to be illegal and interest on refund of such money was allowed.
23. It is contended that when the order of confiscation of goods was held to be bad, the goods were required to be returned to the owner as the order of confiscation was declared illegal on the ground that there was no misdeclaration of the goods and that the applicant was entitled to import those goods on OGL. The confiscated goods, if they had not been disposed of, would have been required to be released in favour of the applicant the applicant could have claimed damages for the damage to the goods and loss caused to it as a result of illegal retention of the goods by the respondents. It was submitted before the Supreme Court that the value of the goods shown in important documents was only 33.04 lacs and as the Duty and the warehousing charges payable on goods was more than the said amount, the applicant was not entitled to recover anything from the respondent. 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 on payment of duty and warehous-ing charges. Thus it was a case where interest was not allowed on the money value of goods returned. However, the Court did observe that had the goods been returned on finding seizure to be unsustainable and illegal the owner would have been entitled to damages or in other matter loss caused to him due to detention. In other words in the case of return of commodity where retention by customs is found to be illegal can at best give right to claim damages which could be proved to have been caused to the owner of goods.
24. Thus, it cannot be said to be an authority laying down a proposition that in all cases where seizure of any commodity is found to be unsustainable in law, on return of commodity itself the owner will be entitled to interest on its money value not with-standing no damage or loss is caused to the owners.
25. In the present case nothing has been placed on record that due to the return of silver bars in Jan. 2005 the petitioner has suffered any loss on account of non user of silver bars. The silver bars cannot be said to be consumable goods, as was the case before the Supreme Court, which was subject to natural decay and depreciation. At best it can be said that he was deprived of the same for that he may claim damages actually suffered if otherwise admissible in law. There being no material that petitioner has suffered any loss or damages due to retention of the silver bars by the Customs authority which ultimately was found to be returnable on finding of facts. In the absence of any such claim to damages no relief can be granted. Even otherwise whether the petitioner suffered any loss so as to warrant grant of any sum by way of damages can be subject of enquiry in exercise of extra ordinary jurisdiction being question of fact needing investigation into facts.
26. Moreover, the question is raised by way of supplementary relief to the relief claimed in the earlier writ petition No. 136/99, such supplementary relief can be granted in a fresh petition.
27. Moreover, we find that finality of litigation come only on 3rd Nov. 2004. When the petitioner applied for the return of silver bars on 23.11.04, no demand of interest was made. The application dated 23.11.04 was promptly responded by return of silver bars on 18.4.05 within two months of the judgment of the Supreme Court. It is only after securing silver bars that a new demand of interest has been raised. We, therefore, in the present circumstances not inclined to grant claim to interest.
28. Accordingly, petition fails and it is hereby dismissed.