Soumen Sen, J.The plaintiff has instituted the suit for specific return of 33320 kgs. betel nuts seized by the Customs Authorities and in the alternative a decree for a sum of Rs. 1,78,44,258/- as pleaded in Paragraph 17 of the Plaint. The plaintiff in the further alternative has prayed for an enquiry into the damages and a decree for such sum as may be found due upon such enquiry. In spite of service of the writ of summons and service of notices upon the defendants, the defendants have failed to enter appearance and filed their written statement.

2. In the circumstances, although the plaintiff is not required to lead any evidence in view of the doctrine of non-traverse and the fact that the plaintiff having knowledge of the proceeding has avoided to appear and contest the proceeding, the Plaintiff No. 1 appears and gives evidence in support of the claim made in the plaint. The cause of action in the suit arose by reason of illegal seizure of 33320 kgs. betel nuts which were subsequently sold by the Customs Authorities. The plaintiff claims that the said confiscation was illegal and held to be so by Superintendent (Adjudication) Commissioner of Customs (Preventive) by a reasoned order dated 24th November, 1999 and consequent upon such adjudication order, the plaintiff is entitled to unconditional release of 33320 kgs. betel nuts valued at Rs. 47,95,200/- in connection with the seizure Case No. 13/IMP/CUS/SLG/DPU/99, dated 7th February, 1999 as was directed by the authority concerned in the final order of adjudication. The Customs Authorities by a letter dated 19th January, 2001 forwarded a cheque for Rs. 12,31,200/- in purported settlement of the plaintiffs claim for release of 33320 kgs. betel nuts valued at Rs. 47,95,200/- and for refund of security deposit amounting to Rs. 40,000/-. The plaintiffs, however, never accepted the said payment of Rs. 12,31,200/- as full and final settlement of their claim.

3. The plaintiffs contended that the seized goods could not be sold until the final outcome of the adjudication proceeding and since the auction on the part of the Customs Authorities are illegal, per se, the plaintiffs are entitled to and claim specific return of the seized goods i.e. 33320 kgs. of betel nuts and refund of a sum of Rs. 35,14,000/- being the differential amount as money had and received by the defendant for the plaintiffs use. The plaintiff has also referred to the judgment delivered by the Honble Division Bench in connection with such seizure and stated that by reason of the order of the Honble Division Bench dated 5th July, 2006 [2007 (207) E.L.T. 185 (Cal.)], the plaintiffs entitled to the amount claimed in the suit after establishing the actual value of the goods. The Plaintiff No. 1 during his evidence has produced eight documents which are marked as Exhibits A, A1, A2, A3, B, C, D and E in support of its claim. Mr. Ratan Lal Jain, the Plaintiff No. 1, deposed that Exhibit Nos. A1, B1 and C1 mentioned in the Seizure List being Exhibit A mentions value of the betel nuts seized by the Customs Authorities having an aggregate value of Rs. 26,65,600/-. The witness referred to the adjudication order and stated that the value of the betel nuts seized by the Customs Authorities would be Rs. 47,95,200/- and not what was mentioned in the Seizure List. He further deposed that the said amount was calculated at the then prevailing market rate. The plaintiff purchased the betel nuts at the rate of Rs. 125/- or Rs. 126/- per kg. from Dooars Area. He has referred to the money receipt issued by the Regulated Market Committee both dated 5th February, 1999 showing the estimated value of the Articles as Rs. 4,95,000/- and Rs. 4,70,000/- aggregating to Rs. 9,65,000/-. He stated that this money receipts were seized by the Customs Authorities and are mentioned in the Seizure List. The witness had referred to the copies of The Economic Times obtained from the National Library to show that the value of the articles as on 6th February, 1999 would vary between Rs. 127 and Rs. 128/-. On 10th February, 1999 the rate was Rs. 127/128 and the price had gone upon on the 5th June, 1999 to Rs. 165/168. The witness stated that the plaintiffs used to pay 2% to the agents and 2% freight charge for bringing the consignment from Dhupguri to Calcutta and thereafter used to add 10% profit in order to arrive at the sale price and at that price, the betel nuts are ultimately sold. The witness explained that although the value of the goods at the time of seizure was Rs. 26,65,600/- the purchase price mentioned in the money receipt are quite less compared to the value reflected in The Economic Times due to the fact that at that time the price had fallen and subsequently there was a rise in the price.

4. It is in this context, the plaintiffs claim Rs. 36,04,000/- as the amount recoverable from the defendants towards the differential value of the goods as well as the return of the security deposit. The other claims are on account of interest, loss and damage and compensation.

5. The Honble Division Bench while disposing of the appeal observed :-

"However, it would be improper for the writ court or for us to direct the Customs Authority to pay the differential value without ascertaining the actual value of the goods."......

"We are, therefore, of the view that the learned single Judge should not have directed payment of the value by taking into account the valuation quote in the order of the adjudicating authority. We also do not find any discussion on the valuation made by the adjudicating authority as to how it could arrive at such valuation."

6. On the basis of the evidence, it appears that the aggregate value of the goods at the time of seizure could not have been more than Rs. 26,65,600/-. The Seizure List was prepared on 7th February, 1999. The order of adjudication in favour of the plaintiff was passed on 16th December, 1999. The Adjudicating Authority directed unconditional release of 33320 kgs. of betel nuts valued at Rs. 47,95,200/- in favour of the plaintiffs and in case the goods have already been sold by auction, the sale proceeds thereof would be refunded to the rightful claimants. The order of adjudication does not disclose the basis of the valuation of the seized articles and from the order itself, the valuation of the betel nuts at Rs. 47,95,200/- is not discernible. Although, the defendant did not appear and contest the proceeding but having regard to the observation made by the Honble Division Bench while disposing of the appeal, I feel that the plaintiff would be required to establish that as on 16th December, 1999 the value of such betel nuts would be Rs. 47,95,200/-.

7. The learned Counsel appearing on behalf of the plaintiff in all fairness has relied upon the decisions reported in 2004 (164) E.L.T. 239 (Cal.) (Bhogilal Mehta v. Union of India), 2008 (221)E.L.T. 203 (P & H) (Commissioner of Customs, Amritsar v. Harinder Singh), 2002 (143) E.L.T. 60 (Del.) (Kailash Ribbon Factory Ltd. v. Commr. of Cus. & C. Ex., New Delhi), 1999 (113) E.L.T. 3 (S.C.) (Northern Plastics Ltd. v. Collector of Customs and Central Excise), 2002 (140) E.L.T. 3 (S.C.) (Shilps Impex v. Union of India) and an unreported decision of this Court in WP No. 951 of 2013 [Ahsan Waris v. Commissioner of Customs (Preventive) & Ors.] decided on 5th March, 2014 [2014 (305) E.L.T. 78 (Cal.)] and submitted that the plaintiff would be only entitled to get the price of the goods as declared and accepted in the seizure list by the department. This submission is made on the basis of ratio laid down in the aforesaid decisions. In WP No. 951 of 2013 the learned Single Judge of this Court after considering some of the decisions cited today also held that the authorities concerned are bound to pay the value of the goods assessed at the time of seizure and not the value which it fetched from the sale of the said goods. After the seizure is declared to be illegal by the adjudicating authority in absence of any rebuttable evidence and contrary evidence to dislodge the testimony of the witness, I feel that the plaintiff is entitled to a decree for a sum of Rs. 26,65,600/- and accordingly a decree is passed for the aforesaid sums. However, during the pendency of the proceeding the plaintiff has received a sum of Rs. 12,31,200/- on January 18, 2001.

8. In view thereof, the plaintiff shall be entitled to payment of interest at the rate of 8% per annum on and from 1st January, 2000 till December, 2000 on Rs. 26,65,600/- and thereafter on the remaining balance at the same rate of 8% per annum till realization.

9. The suit is decreed accordingly.

10. The decree shall be drawn up as expeditiously as possible.