Bhaskar Bhattacharya, J.
1. By this writ application the writ petitioner, an exporter, has challenged the authority of the respondent No. 3 to seize bank account opened by the petitioner for the purpose of realisation of drawback amountreleased by the customs authority.
2. According to the petitioner, he maintains a Current Account being current account number C.A - 000000066224 with respondent No. 4, the United Bank of India, Calcutta Branch (CD Customs Department) in which the customs authority releases the drawback amount payable to the petitioner. There is no dispute that such an account is opened by an exporter for the purpose of receiving drawback benefits and such account is called Custom Account. In such an account except monetary benefits received under drawback scheme, no other amount can be kept.
3. In this writ application, the writ petitioner has alleged that in respect of 9 different transactions mentioned in paragraph 4 of the writ application, goods exported by the petitioners were duly received and accepted by the overseas buyers and there was no complaint from the overseas buyers with regard to those goods or transactions in any manner. It is further alleged that after receipt of the goods the overseas buyers had also paid the full consideration money to the petitioners as would appear from Annexure 'P-3' to the writ application. It is further stated that in usual course of business the petitioner regularly approached the customs authority for release of duty drawback with regard to those transactions and after being fully satisfied with all documents furnished by the petitioner, the customs authority from time to time transferred various sums on different dates in the said bank account. However, the petitioner could not furnish full particulars. The petitioner's complaint is that on July 10, 2002 he came to learn from bank that the said bank account of the petitioner has been seized by the customs authority with effect from March 31, 2002 and as such, the petitioner was not allowed to operate the same. On 7th February, 2003 the petitioner made a representation before the respondent in writing through a learned Advocate with a request to forthwith withdraw the said illegal seizure but the respondent had not answered such representation. The petitioner thus prays for setting aside the order of seizure of the bank account.
4. This application is seriously opposed by the customs authority by filing affidavit-in-opposition. In the said affidavit the respondents have alleged that the writ petitioner is a notorious evader of customs duty and is involved in number of cases arising out of violations of Customs Act and Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. It is further alleged that the Joint Secretary to the Government of India in exercise of power conferred under Section 3 of Sub-section 1 of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 passed an order of detention against the writ petitioner. Since the writ petitioner is absconding, the said detention could not be served upon the writ petitioner.
5. The definite case of the customs authority is that a specific intelligence was received that some exporters were trying to export Ball pens, rubber side wheels and garments by misdeclaring the description, value and quantity of the goods under duty drawback scheme. In this regard, 8 containers stuffed with the aforesaid goods were off loaded and subjected to 100% examination of goods at Vizag port. The consignments were exported under the name of the exporting firms viz. (1) M/s. Vidur Impex, (2) M/s. S.S. Enterprises and (3) M/s. Secure International. According to the respondents, in all these cases show cause notices have been issued and adjudication proceedings are on the way for abuse of the drawback scheme. It is further alleged that in the absence of sufficient information at the material time, two containers containing goods belonging to the firms M/s. Vidur Impex and M/s. Arjun Exports respectively could not be off loaded and therefore, sailed all the way to Singapore. The respondents alleged that both the aforesaid firms belong to the petitioner. Ultimately, one container could be recalled back from Singapore and the goods contained therein were 100% examined and discrepancies found therein and have been included in show cause notices issued against M/s. Vidur Impex. However, the container containing goods mentioned in paragraph 4 of the writ petitioner could not be recalled. Considering the active involvement of the petitioner in the fraudulent exports made under the name of M/s. Arjun Exports, it was decided, in the interest of revenue, to withhold the drawback account. The respondent contends that this is a 'pre-emptive measures taken to safeguard Government revenue'.
6. In Paragraph 6 of the affidavit-in-opposition it is further stated that contemporaneous similar exports in the case of Shyam Sunder Enterprises has been held to be improper by this Court in the order dated May 6, 2002 in W.P. No. 145 of 2002 [2002 (148) E.L.T. 3 (Cal.)]. Since the export had been made illegally by giving misdescription/ the petitioner was not entitled to drawback. Ultimately, it is contended that although the decision was taken to give benefit of duty drawback amount to the petitioner, the said amount was not transferred to the bank account of the petitioner because if the allegations made against the petitioners are ultimately found to be true, the petitioner will not be entitled to any drawback benefit. It is, however, admitted in paragraph 10 of the affidavit-in-opposition that the respondent No. 4 was directed by the Deputy Commissioner of Customs Special Investigation Branch, Calcutta vide his letter dated January 18, 2002 to withhold any amount available in the said account till further information.
7. In affidavit-in-reply the petitioner has disputed the allegations made in affidavit-in-opposition and has contended that once drawback has been released in the account of the petitioner, the same becomes money belonging to the petitioner and the respondent had no jurisdiction to stop operation of the bank account.
8. Since in paragraph 3 of the affidavit-in-reply the petitioner specifically asserted that in respect of nine shipping bills duty drawback had already been transferred to the petitioner's bank account under three scroll numbers, the respondent authority was permitted to file a supplementary affidavit for the purpose of dealing with the allegations made in the said paragraph.
9. Pursuant to such liberty, in the supplementary affidavit the respondent has categorically stated that in respect of those nine transactions, investigations are going on and that drawback department of customs house although sanctioned drawback against the nine shipping bills through scroll Nos. 152, 154 and 155 but the amounts have not been credited in the account of the petitioner.
10. Mr. Chatterjee, the learned Counsel appearing on behalf of the petitioner contends that once drawback has been released in the accountmaintained by the petitioner, the money becomes property of the petitioner and there is no provision under the Customs Act for seizure of such money in the hand of the petitioner. He thus prays for a direction upon the bank to release money lying in the said account in favour of the petitioner.
11. Mr. Bandyopadhyay, the learned Counsel appearing on behalf of the customs authority has, on the other hand, vehemently disputed the aforesaid contention of Mr. Chatterjee and has contended that this writ application should be dismissed as there is no specific allegation against the customs authority in the writ application. According to Mr. Bandyopadhyay serious types of fraud have been alleged against the petitioner and those frauds are being subject to investigation. This Court, Mr. Bandopadhyay submits, should not pass any direction for release of the amount lying in the account. Mr. Bandyopadhyay contends that this writ application should be dismissed as the petitioner has come with unclean hand on the basis of vague allegations.
12. Although, United Bank of India has been made party and copy of the writ application has been served, neither any affidavit-in-opposition has been filed nor has any learned Counsel appeared on behalf of the bank at the time of hearing.
13. After hearing the learned Counsel for the parties and after going through the materials on record, I find that questions required to be decided in this application are whether the Deputy Commissioner, Customs, the respondent No. 3 herein, was right in issuing direction upon the bank not to release any amount from the account in the name of the petitioner and whether the bank was under obligation to honour such direction.
14. I have already indicated that the account, in question, is a customs account meant only for the purpose of receiving duty drawbacks released by the customs and through the said account no other transactions are made. According to the provisions of Customs Act, the customs authority after being fully satisfied that an exporter is entitled to duty drawback, releases the drawback amount payable to him in such customs account. If there is any allegation of fraud, the customs authority is free to investigate such fraud and if it is found that an exporter has committed any fraud or is not otherwise entitled to drawback amount, in such a case, the authority can refuse such drawback; but once drawback amount is issued and the same has been placed in the account of the petitioner, such money becomes property of the petitioner. The moment it becomes property of the petitioner, the customs authority can attach such property only in accordance with law either by taking aid of necessary order through competent court or by exercise of power, if conferred upon it, by statute. Mr. Bandyopadhyay failed to draw attention of this Court to any provision of any statute which enables Deputy Commissioner to seize any personal property of the petitioner including money lying in a bank account merely because an investigation is going on in respect of an export transaction for which drawback has been released in favour of the petitioner. Even if the customs authority approaches the Court for an order in the nature of attachment before judgment, in such a case, such attachment can be limited to the extent of money fraudulently obtained but not in excess of that amount. In this case, till date no final order has been passed holding that any amount received by the petitioner by way of drawback was outcomeof fraudulent export.
15. As regards the instances of export mentioned in paragraph 4 of the writ application or in paragraph 3 of the affidavit-in-reply, it is the definite case of the customs authority that no money by way of drawback has been released in the account of the petitioner. If that be the position, the respondent No. 3 could not pass any direction upon the bank vide its letter dated January 18, 2000 to withhold any amount available in the said account until further information. The respondent No. 4, the bank also acted illegally in acting on such a letter written by the respondent No. 3 unless law authorises respondent No. 3 to issue such instruction in respect of any bank account maintained by a third party. I have already pointed out that in this case no competent court or authority has yet passed any direction for withholding money lying in the said account.
16. I, therefore, find substance in the contention of Mr. Chatterjee that both respondent No. 3 and respondent No. 4 acted illegally and without jurisdiction resulting in withholding of the amount available in the said account of the petitioner and such interference on the part of the respondents was unauthorised. If the customs authority itself asserts that drawback in respect of those alleged fraudulent transactions has not been transferred to the account of the petitioner there cannot be any conceivable justification even for running towards the account of the petitioner.
17. I thus find that there has been serious infringement of the legal right of the petitioner in enjoyment of his own property by the illegal acts of respondent No. 3 and respondent No. 4 in withholding the amount lying in the said account in the absence of any valid order from any competent court or authority. The petitioner being a businessman could invest the said amount for his business and could further earn in the process. The fact that the petitioner has not been permitted to withdraw any amount from the said account not having been disputed by the respondents, I not only quash the letter dated 18th January, 2002 issued by the respondent No. 3 to the respondent No. 4 but also direct the respondent No. 3 and respondent No. 4 to pay interest at the rate of 20% per annum on the amount lying in the said account to the petitioner (to be borne equally) from the date of withholding of the amount till date. The respondent No. 4, the bank will immediately permits the petitioner to withdraw the amount lying in the account if he intends to withdraw such amount unless in the meantime any competent court or authority has passed any other order of attachment over the said account.
18. I, however, make it clear that I have not gone into the question whether the transactions mentioned in the writ application had violated any of the provisions of the Customs Act and whether the petitioner is liable to get drawback in accordance with the provisions of the Customs Act as the same is beyond the scope of this writ application. The writ application thus succeeds to the extent indicated above with costs which I assess at 300 GM to be payable by contesting Customs Authority.