Rajasthan High Court - Jodhpur
Lrs Of Gunwant Lal Godawat vs Union Of India on 7 January, 2021
Bench: Indrajit Mahanty, Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 17193/2019
1. Chanda Devi Godawat W/o Late Gunwant Lal Godawat,
Aged About 85 Years, resident of Choti Dadri, Pratapgarh,
Rajasthan.
2. Pradeep Singh Godawat S/o Late Gunwat Lal Godawat,
Aged About 53 Years, resident of Choti Sadri, Pratapgarh,
Rajasthan.
3. Abhay Singh Godawat S/o Late Gunwant Lal Godawat,
Aged About 62 Years, resident of Choti Sadri, Pratapgarh,
Rajasthan.
4. Ravindra Singh Godawat S/o Late Gunwant Lal Godawat,
Aged About 57 Years, resident of Choti Sadri, Pratapgarh,
Rajsthan.
All are presently residing at Baghana, Neemach, Madhya
Pradesh 458441 and are Legal Representatives of Late
Sh. Gunwant Lal Godawat.
----Petitioners
Versus
1. Union Of India, Through Commissioner Of Customs
(Preventive), Ministry Of Finance, Department Of
Revenue, Ncr Building, Statue Circle, C Scheme, Jaipur
(Raj.).
2. The Joint Commissioner (Recovery), Ncr Building, Statue
Circle, C Scheme, Jaipur (Raj.).
3. The Deputy Commissioner, Customs Commissionerate,
Jodhpur, Headquarters Ncr Building, Statue Circle, C
Scheme, Jaipur (Raj.).
4. The Deputy Commissioner (Legal), NCR Building, Statue
Circle, C Scheme, Jaipur (Raj.).
5. The Assistant Commissioner (Legal), NCR Building, Statue
Circle, C Scheme, Jaipur (Raj.).
6. The Deputy Commissioner (Recovery), NCR Building,
Statue Circle, C Scheme, Jaipur (Raj.).
----Respondents
For Petitioner(s) : Mr. Ramit Mehta
(2 of 5) [CW-17193/2019]
For Respondent(s) : Mr. Rajvendra Saraswat
Both through CICSO Webex
HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY
HON'BLE MR. JUSTICE DINESH MEHTA
Order
07/01/2021
1. By way of the instant writ petition, the petitioners have
challenged the notice of attachment dated 26.06.2019 and the
certificate dated 17.05.2019 issued by the Dy. Commissioner,
Customs - respondent No.3.
2. Mr. Mehta, learned counsel for the petitioners submitted that
the demand of interest so also notices of attachment have been
issued under the provisions of the Customs Act, 1962, which
provisions cannot be invoked, as has been held by this Court in
petitioners' case itself, which has been affirmed by Hon'ble the
Supreme Court.
3. Learned counsel contended that since the provisions of the
Customs Act and the Rules framed thereunder have been held
inapplicable, the respondents cannot resort to such provisions for
the purpose of determining the interest.
4. Mr. Saraswat, learned counsel for the respondents, at the
outset, submitted that the present writ petition is not
maintainable, as earlier writ petition (DB CWP No.10398/2019)
filed by the petitioners for the same relief has been withdrawn
with a liberty to seek clarification from Hon'ble the Supreme
Court.
5. Heard.
(3 of 5) [CW-17193/2019]
6. It is not in dispute that the petitioners had earlier filed the
writ petition (DB CWP No.10398/2019), laying challenge to the
levy of interest. Said writ petition came to be withdrawn by the
petitioners on 17.07.2019, as they stood advised to file
appropriate application regarding seeking clarification with respect
to interest payable. Said order dated 17.07.2019 reads thus :-
"After arguing the matter for quite some time,
learned counsel appearing for the petitioners submits
that the petitioners intend to approach the Supreme
Court regarding the clarification of the order in respect
of the interest payable and therefore, they may be
permitted to withdraw the writ petition.
Permission granted.
The writ petition is dismissed as withdrawn."
7. The basic grievance raised in the present writ petition is in
relation to interest only. May be, on different ground viz. the
provisions of Customs Act cannot be invoked for the purpose of
calculation of interest.
8. In our considered view, since the petitioners have withdrawn
the writ petition filed by them, a fresh writ petition for the same
cause, may be with different legal grounds cannot be maintained
and the same is barred by principles of res-judicata.
9. That apart, the facts on record, clearly show that Hon'ble the
Supreme Court vide its order dated 22.11.2017 has permitted the
respondents to recover interest @10%, apart from the fine of
Rs.11.04 Crores. The operative portion of the judgment dated
22.11.2017 reads thus :-
"74. We are only left with one submission made
on behalf of the Union of India i.e. in view of the
enormous delay which took place in the confiscation
(4 of 5) [CW-17193/2019]
proceedings (50+ years), the appellant must be made
to pay the interest on the amount of fine of Rs.11.04
crores. Otherwise, it would have the effect of
permitting the appellant to profit by litigation as
according to the Attorney General if the appellant is
permitted to take back the entire quantity of 240.040
kg of gold the current market value would be Rs.72
crores (approx.). We find the submissions wholly
justified. We, therefore, deem it proper to direct that
the appellant would be entitled to redeem the gold by
paying not only the fine of Rs.11.04 crores but also the
interest thereon calculated @10% p.a."
10. A perusal of above quoted portion of the judgment of Hon'ble
the Supreme Court leaves no room for ambiguity that the
petitioners have been held liable for payment of interest @ 10%
p.a.
11. A careful reading of the order dated 16.05.2018 whereby the
petitioners have been called upon to pay interest @10% shows
that it does not make reference of the provisions of the Customs
Act and the Rules framed thereunder and same makes a reference
of order of Hon'ble the Supreme Court only. The relevant part of
the communication dated 16.05.2018 is reproduced hereunder for
ready reference :-
"3. Further, it is also to intimate that as per
Hon'ble Supreme Court order dated 22.11.2017 amount
of R.F. of Rs.11.04 Crore is to be deposited along with
interest @ 10% per annum w.e.f. 09.12.1994."
12. Upon petitioners' failure to pay the applicable interest in
subsequent notice dated 05.11.2018, the respondents have taken
recourse to the provisions of the Customs Act and the Rules
framed thereunder, that too for the purpose of ensuring recovery.
(5 of 5) [CW-17193/2019]
13. As a matter of fact, determination of interest has been made
in light of the judgment of Hon'ble the Supreme Court dated
22.11.2017 and provisions of Customs Act and Rules framed
thereunder have been invoked only for the purpose of incidental
power to adopt manner and mode of recovery.
14. This being the position, we are of the firm view that the
present writ petition is liable to be dismissed not only on the
ground of principles of res-judicata but also on merit.
14. The writ petition is, therefore, dismissed.
(DINESH MEHTA),J (INDRAJIT MAHANTY),CJ
s-110-ArunV/-
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