JUDGMENT

G.T. Nanvati, J.

(1) THE applicant in both these applications in Northern Plastic Limited (now merged with Consolidated Photo & Finest Ltd.). It was the appellant in the above Civils which have been allowed by this court by its decision dated 14/7/1998. These applications have been filed for direction under Article 142 of the Constitution read with Order 47 Rule 6 of the Supreme court Rules, 1956.

(2) THE applicant had imported 59 jumbo rolls of Photographic Colour Files (Unexposed Positive in January, 1989. He filed the bill of entry on 11/1/1989 for clearance of the said goods. The were not cleared by the customs authorities as they had some doubt regarding its correct classification and entitlement to the benefit of exemption of customs duty and countervailing duty under the notifications mentioned in the bill of entry. That ultimately led to issuance of show cause notice on 14/8/1989 for confiscation of the said goods on the grounds that there was misdeclaration of description in the bill of entry for the purpose of classification and availing of exemption and the goods were not eligible for import under the O.G.L. By an order dated 14/9/1989 the collector of Customs ordered confiscation of those goods. However, taking into account the entire facts and circumstances of the case he gave the applicant an option to redeem those goods on payment of redemption fine of Rs. 5,00,000.00. He also imposed a penalty of Rs. 10,00,000.00

(3) THE goods were earlier ordered to be released by an interim order dated 27/4/1989 passed by the Gujarat High court. But as the said order was challenged both by the Union of India and by Hindustan Photo Films in this court by filing S.L.P. NOs. 8225 of 1989 and 9012 of 1989 they were not released. Meanwhile on 16/8/1989 Dehi HIgh court had also passed an order restraining he applicant to deal with or sell the said goods in any manner even if released in their favour by the customs authorities. The goods thus could not be obtained by the appellant and they came to be sold by the customs authorities even while the above appeals were still pending in this court. Against the order of Collector dated 14/9/1989 the applicant had preferred an appeal to CEGAT. The appeal was virtually dismissed except that the fine of Rs. 10,00,000.00 was reduced to Rs. 5,00,000.00 Aggrieved by the Collectors order dated 14.9.89 as confirmed by CEGAT the applicant had filed Civil No. 3325 of 1990. Civil No. 4196 of 1989 was filed against the earlier order of the Collector.

(4) SETTING aside the order dated 14.9.89 and the order passed by CEGAT this court held that the goods were not mis-declared by the appellant and they were also eligible for import under OGL. This court further held that for these reasons the goods imported by the appellant were not liable to confiscation and the impugned orders passed by the Collector and CEGAT were illegal. Both the appeals were therefore allowed.

(5) WHAT is now contended by learned senior Counsel Mr. Dave in these applications is that the order of confiscation having been set aside the respondent is liable to return the goods to the applicant. He also submitted that the respondent should not have, without obtaining the order of this court, sold away the goods during the pendency of the appeals. Since the respondent had wrongfully prevented clearance of the goods for consumption by the applicant and as the respondent has wrongfully confiscated the goods and sold them away he should be held liable to return the value of the said with 21% interest from 21/12/1988 till payment thereof.

(6) IN the counter affidavit filed on behalf of the respondent by the Under secretary to the government of India Ministry of Finance, opposing these applications it is stated that as the goods had specific expiry date and were also required to be stored in an air conditioned place, the Collector of Customs had informed the applicant on 28/5/