The Customs authorities have the power to seize documents and things under section 110(3) of the Customs Act, 1962, which includes the money lying in a petitioner's bank account, if the money belongs to the department and the seizure is necessary to protect the department's property.

Kalyan Jyoti Sengupta, J.

1. This writ petition is directed against alleged inaction of the respondents for not releasing drawback to the petitioner against the shipping bills in respect of export of the goods allegedly made during the period December 2000 and January 2001 and also for recalling and/or cancelling and/or withdrawing direction and/or order for seizure of the bank account of the petitioner with United Bank of India, Calcutta Main Branch.

2. Briefly stated fact of the case in the writ petition amongst other is that the petitioner pursuant to the various contracts from the overseas parties exported various items of materials, viz., Auto Gaskets, Tee-Shirts, Harness Reins, Bridle, Ball Point Pen and Refills during the period between December 2000 and January 2001. The factum of export is evidenced by the shipping bills annexed to the writ petition being Annexure "P-l". Immediate after export as above the petitioner applied for drawback under the Drawback Scheme framed by the respondent authority. According to the petitioner he became entitled to receive an aggregate sum of Rs.1,19,14,858.25 from the respondents on account of drawback. The said exports were permitted to be made by the Customs authorities after they were satisfied with the particulars of the goods conforming to the description mentioned in the shipping bills. In spite of submission as above the respondent authorities, however, did not process or proceed with the application for release of drawback and the same has been illegally and wrongfully withheld from payment. Over and above without any informed reason the respondent authorities have seized the bank account of the petitioner maintained for this purpose with United Bank of India in its Calcutta Main Branch.

3. Mr. Pratap Chatterjee, learned Senior Advocate appearing with Mr. Banerjee learned Senior Advocate and Mr. Chowdhury learned Advocate for the petitioner submits that under the Customs Act, 1962 (hereinafter referred to as the said Act) the respondent authority has no power either expressly or otherwise to attach or seize the bank account. He contends that it can only be done in certain circumstances for recovery of Government dues from the defaulters under certain conditions of Customs (Attachment of Property of Defaulters for Recovery of Government Dues) Rules 1995. He also submits that the bank account can only be attached under section 142 of the said Act which contemplates for recovery of sums due. At present admittedly there is no dues recoverable from the petitioner. He contends that neither of the aforesaid two provisions is applicable in this case.

4. He submits that even Rule 16 of the Customs and Central Excise Duties Drawback Rules, 1995 (hereinafter referred to as the said Drawback Rules) does not empower to realize or refund without any adjudication of the drawback amount being refundable followed by demand. For this purpose recovery proceeding has to be initiated under section 142 (1) of the said Act read with Rule 16 of the said Drawback Rules. Under the provision of Rule 16A of the said Drawback Rules the amount can be recovered only when intimation from Reserve Bank of India would be received about non-receipt of export proceeds. No notice has been issued by the Customs authorities under Rule 16A (2) of the said Drawback Rules. He contends further that under the provision of the Customs Act or the Rules framed thereunder drawback cannot be withheld on the plea of non-receipt of export proceeds.

5. On the question of seizure of the bank account in relation to the subsequent consignment he relies on a decision of this Court of the learned Single Judge reported in (2000) 110 ELT 18 and also another decision reported in (1999) 106 ELT 431 and submits this seizure is not permissible under law. Therefore, he submits that the order and /or direction for seizure of the bank account should be set aside and cancelled and the respondent authorities should be directed to release dr