JUDGMENT - DAGA V.C., J.:---The petitioner, in this petition, is seeking directions in the nature of writ of mandamus against the respondents 2 to 4 to direct them to return the seized currency amounting to Rs. 4,13,600/-, which according to him, came to be released under Order dated 29-1-1999 passed by the Appellate Bench of Central Excise and Gold Appellate-Tribunal, Mumbai (the CEGAT for short) with interest thereon @ 24% p.a. from 29-1-1999 till realisation thereof.

The Facts :

2.The facts, in nutshell, would reveal that search and seizure operation was conducted in the shop and residential premises of the petitioner on 18-9-1990. Foreign currency equivalent to Indian currency worth Rs. 44,447.50 alongwith Indian currency in the sum of Rs. 4,13,600/- was recovered and seized in the said search and seizure operation.

3.A show cause notice dated 13-3-1991 was served upon the petitioner calling upon him to show cause as to why said currencies/amounts should not be confiscated. The said show cause notice was replied by the petitioner. It came to be adjudicated upon by the Additional Collector of Customs, (M P Wing) vide its Order-in-Original No. 72/93/Cus dated 1-3-1993 wherein confiscation of the said currencies/amounts came to be ordered.

4.Aggrieved by the aforesaid order, the petitioner preferred an appeal before the Collector of Customs (Appeals), Bombay which came to be dismissed by an order in Appeal No. 34/94 BP; dated 18-3-1994.

5.Aggrieved by the aforesaid order, the petitioner went in appeal before the CEGAT, which came to be allowed by the order dated 29-1-1999.

6.It appears that on the basis of the certain observations made in the aforesaid order by the CEGAT in its order dated 29-1-1999, the matter was referred to the Enforcement Directorate. By the order dated 22-10-2001, the Assistant Director, Enforcement Directorate after due investigation imposed penalty of Rs. 1 lac on the petitioner and inter alia; made observation on page (11) of the Order, which reads as under :

"In view of the above, Shri Abdul Razak Haji Ismail has conclusively contravened the provisions of section 8(1) of FERA, 1973 I hold him guilty for the same and imposed a penalty of Rs. 1,00,000/- (Rupees One lakh only).

The seized Indian currency of Rs. 4,13,600/- which was a sales proceeds of the foreign exchange and proposed for confiscation under section 63 of the FERA, 1973 is, therefore, liable to confiscation in view of the contravention of section 8(1) as proved against him.

However, the customs department vide their letter No. CIU/11-40/90/1084 dated 20-8-2001 stated that the currency of Rs. 4,13,600/- was deposited in the Bank of India vide TR-6, Challan No. CIU/11/91 dated 10-12-91 and therefore, they are not in a position to hand over the currency to this department for confiscation.

I, therefore, do not pass any order for confiscation." (Emphasis supplied)

7.In view of the aforesaid order, the learned Counsel for the petitioner, entertaining belief that seized currency has not been confiscated, addressed a letter calling upon the revenue to release the amount of Rs. 4,13,600/-, contending that though there are observations that money is liable to be confiscated but no actual order directing confiscation of the said amount has been passed finding that the moneys were deposited by the Customs Department with the bank. In the circumstances, on 18-7-2002 the Deputy Commissioner of Customs (P) (Refund Section, M P Wing) Mumbai wrote a letter to the Assistant Director (Admn.) Enforcement Directorate, seeking clarification that in view of the observations made in their order, whether or not the amount of Rs. 4,13,600/- has been confiscated. The Enforcement Directorate, vide its letter dated 7-10-2002, replied to the Dy. Commissioner of Customs (Refund Section M P Wing) that; as the Asstt. Director of Directorate of Enforcement has already ordered that the currency is liable for confiscation, the request of the petitioner to release the seiz