Collector of Customs Vs. Sudhir Kumar Dhingra - Court Judgment

Excerpt:
1. the revenue had filed the present stay application with the following prayers :- (a) the operation and implementation of the order no. 3/mms/95, dated 10-2-1995 passed by the commissioner of customs, new delhi may be stayed.2. the stay application was heard on 15-1-1996 when shri p. das, sdr appeared for the applicants/revenue. shri m.m. mathur, advocate represented the respondents - s/shri sudhir kumar dhingra & m/s. sudhir electronic.3. the ld. sdr stated that the respondents had filed a writ petition in the delhi high court for modification of the order passed by the ld.commissioner of customs. the matter came up before the hon'ble high court on 15-12-1995 'when the high court passed the following order :- "ld. counsel for the respondent states that an appeal has been filed against the order of the collector (adjudication) dated 10-2-1995, before the cegat and matter is pending consideration. ld. counsel for the respondent will intimate on the next date as to whether or not cegat has stayed the operation of the order dated 10th feb., 1995. list the matter on .... feb., 1996." 4. the ld. sdr also submitted that prosecution proceedings have been launched against the respondents and that the seized goods are the case property in that case. he prayed that the goods ordered to be released by the commissioner of customs, may not be released and that the seized foreign currency and indian currency may also be ordered to be retained with the department till the revenue's appeal is disposed of.5. shri m.m. mathur, ld. advocate contesting to the points raised by the ld. sdr submitted that the order passed by the ld. commissioner of customs is detailed and reasoned and that there is no ground for not releasing the goods seized and ordered to be released by the commissioner of customs. he further stated that there is no order by the court in which prosecution proceedings are pending that the goods to be treated as case property. the ld. advocate also submitted that shri sudhir kumar dhingra is not well and is undergoing treatment for heart ailment.6. the ld. sdr in rejoinder submitted that the case of the revenue will be irrepairably damaged if the case properties are ordered to be released at this juncture.7. we have carefully considered the matter. the order part of the adjudication passed by the commissioner, customs, new delhi is reproduced below :- "(1) i drop the proceedings initiated against the noticee, namely, shri sudhir kumar dhingra and m/s. sudhir electronics in toto. (2) i order release of all the 5 cheques/pay orders/drafts recovered from the brief case in the shop and seized on 11-10-1991 to shri sudhir kumar dhingra for onward transmission to their respective rightful owners. (3) i order release of us $ 100 currency note recovered from the brief case and seized on 11-10-1991 to shri sudhir kumar dhingra with the condition that it should be deposited with the r.b.i, in accordance with the requirements of the law in this behalf within a week of its release. (4) i order release of indian currency amounting to rs. 15 lakhs seized from the residence of shri dhingra on 11-10-1991. however, since 40% of this amount has already been deposited by the noticee with the national housing bank under the voluntarily disclosure scheme announced by the government in 1991, under the orders of the hon'ble high court at delhi, the balance 60% may now be released to shri dhingra and the income-tax and other concerned authorities may be suitably informed. (5) i order release of all the goods seized from the residence, godown and shop premises of shri dhingra in this case to the noticee, namely, shri s.k. dhingra." 8. it is seen from the order that the cheques/pay orders/drafts had been ordered to be transmitted to the respective rightful owners. the foreign exchange have been ordered to be deposited with the reserve bank of india. further, the indian currency have been ordered to be released under intimation to the income tax authorities. 40% of the seized indian currency had already been deposited by the noticee with the national housing bank under the voluntarily disclosure scheme announced by the govt. in 1991, under the orders of the high court of delhi. for this part of the order, we do not find anything, which we could stay. accordingly insofar as the cheques/pay orders/drafts, foreign exchange and indian currency are concerned, we reject the prayer of the revenue for stay.9. insofar as the goods seized from the residence, godown and shop premises of shri dhingra is concerned, we find that the goods are miscellaneous in nature including camera, liquors, etc. the order passed by the commissioner of customs, is under appeal with the tribunal. further, as informed by the ld. sdr prosecution proceedings are pending in the court of law with regard to these proceedings.further, the respondents had also gone to the court for appropriate orders. presently, we have no copies of the proceedings before the high court or the court for prosecution. in the circumstances and in the interest of justice, we consider that an early hearing be given in this case and pending the final view taken by the tribunal the goods seized and ordered to be released under the impugned order may not be released and be kept with the customs deptt.10. accordingly, we partly allow the stay application as above and order accordingly for early hearing of the case for which the case is fixed for hearing on 4-3-1996. both the sides are also directed to place on record the orders passed by the high court or the courts in which prosecution proceedings are pending alongwith the copies of the complaints. further, both the sides are directed to file proper paper book for full appreciation of the issue involved.

Judgment:
1. The Revenue had filed the present stay application with the following prayers :- (a) The operation and implementation of the Order No. 3/MMS/95, dated 10-2-1995 passed by the Commissioner of Customs, New Delhi may be stayed.

2. The stay application was heard on 15-1-1996 when Shri P. Das, SDR appeared for the Applicants/Revenue. Shri M.M. Mathur, Advocate represented the respondents - S/Shri Sudhir Kumar Dhingra & M/s. Sudhir Electronic.

3. The ld. SDR stated that the respondents had filed a writ petition in the Delhi High Court for modification of the order passed by the ld.Commissioner of Customs. The matter came up before the Hon'ble High Court on 15-12-1995 'when the High Court passed the following order :- "Ld. Counsel for the respondent states that an appeal has been filed against the order of the Collector (Adjudication) dated 10-2-1995, before the CEGAT and matter is pending consideration. Ld. Counsel for the respondent will intimate on the next date as to whether or not CEGAT has stayed the operation of the order dated 10th Feb., 1995. List the matter on .... Feb., 1996." 4. The ld. SDR also submitted that prosecution proceedings have been launched against the respondents and that the seized goods are the case property in that case. He prayed that the goods ordered to be released by the Commissioner of Customs, may not be released and that the seized foreign currency and Indian currency may also be ordered to be retained with the Department till the Revenue's appeal is disposed of.

5. Shri M.M. Mathur, ld. Advocate contesting to the points raised by the ld. SDR submitted that the order passed by the ld. Commissioner of Customs is detailed and reasoned and that there is no ground for not releasing the goods seized and ordered to be released by the Commissioner of Customs. He further stated that there is no order by the Court in which prosecution proceedings are pending that the goods to be treated as case property. The ld. Advocate also submitted that Shri Sudhir Kumar Dhingra is not well and is undergoing treatment for heart ailment.

6. The ld. SDR in rejoinder submitted that the case of the Revenue will be irrepairably damaged if the case properties are ordered to be released at this juncture.

7. We have carefully considered the matter. The order part of the adjudication passed by the Commissioner, Customs, New Delhi is reproduced below :- "(1) I drop the proceedings initiated against the noticee, namely, Shri Sudhir Kumar Dhingra and M/s. Sudhir Electronics in toto.

(2) I order release of all the 5 cheques/pay orders/drafts recovered from the brief case in the shop and seized on 11-10-1991 to Shri Sudhir Kumar Dhingra for onward transmission to their respective rightful owners.

(3) I order release of US $ 100 currency note recovered from the brief case and seized on 11-10-1991 to Shri Sudhir Kumar Dhingra with the condition that it should be deposited with the R.B.I, in accordance with the requirements of the law in this behalf within a week of its release.

(4) I order release of Indian currency amounting to Rs. 15 lakhs seized from the residence of Shri Dhingra on 11-10-1991. However, since 40% of this amount has already been deposited by the noticee with the National Housing Bank under the voluntarily disclosure scheme announced by the Government in 1991, under the orders of the Hon'ble High Court at Delhi, the balance 60% may now be released to Shri Dhingra and the income-tax and other concerned authorities may be suitably informed.

(5) I order release of all the goods seized from the residence, godown and shop premises of Shri Dhingra in this case to the noticee, namely, Shri S.K. Dhingra." 8. It is seen from the order that the cheques/pay orders/drafts had been ordered to be transmitted to the respective rightful owners. The foreign exchange have been ordered to be deposited with the Reserve Bank of India. Further, the Indian currency have been ordered to be released under intimation to the Income Tax Authorities. 40% of the seized Indian currency had already been deposited by the noticee with the National Housing Bank under the voluntarily disclosure scheme announced by the Govt. in 1991, under the orders of the High Court of Delhi. For this part of the order, we do not find anything, which we could stay. Accordingly insofar as the cheques/pay orders/drafts, foreign exchange and Indian currency are concerned, we reject the prayer of the Revenue for stay.

9. Insofar as the goods seized from the residence, godown and shop premises of Shri Dhingra is concerned, we find that the goods are miscellaneous in nature including camera, liquors, etc. The order passed by the Commissioner of Customs, is under appeal with the Tribunal. Further, as informed by the ld. SDR prosecution proceedings are pending in the Court of Law with regard to these proceedings.

Further, the respondents had also gone to the Court for appropriate orders. Presently, we have no copies of the proceedings before the High Court or the Court for prosecution. In the Circumstances and in the interest of justice, we consider that an early hearing be given in this case and pending the final view taken by the Tribunal the goods seized and ordered to be released under the impugned order may not be released and be kept with the Customs Deptt.

10. Accordingly, we partly allow the stay application as above and order accordingly for early hearing of the case for which the case is fixed for hearing on 4-3-1996. Both the sides are also directed to place on record the orders passed by the High Court or the Courts in which prosecution proceedings are pending alongwith the copies of the complaints. Further, both the sides are directed to file proper paper book for full appreciation of the issue involved.