JUDGMENT :

T.S.SIVAGNANAM, J.

1. This intra court appeal filed by the writ petitioner is directed against the order passed by the learned single bench in WPO No. 568 of 2019 dated 05.12.2022.

2. We have heard Mr. Dipankar Ray, learned advocate assisted by Mr. Soumyajit Mishra, learned advocate for the appellant and Mr. K.K. Maity, learned senior standing counsel assisted by Ms. Manasi Mukherjee, learned standing counsel for the first respondent and Mr. Kaushik Dey, learned standing counsel for the second respondent and Mr. Rajesh Kumar Shah, learned standing counsel for the Union of India.

3. The appellant had filed a writ petition praying for return of the interest amount of Rs. 13,04,464/- which according to the appellant has been illegally collected in the name of rent, insurance and GST charges which are not payable by the appellant. The facts leading to the filing of the writ petition are set out hereunder:

4. The appellant was granted advance license by the Foreign Trade Development Officer, Mumbai dated 26.06.2002 to manufacture and export of 310 metric tons of zinc oxide of 100% purity through their supporting manufacturers. On 15.07.2002, the appellant purchased on high sea sales basis zinc ingots the said product which were stuffed into eight containers, were ceased by the Directorate of Revenue Intelligence, (DRI) on the allegation that the goods were to be diverted to the local market instead of sending the same to the supporting manufacturers for manufacture of goods to be exported. Show cause notice dated 14.02.2003 was issued as to why, the eight containers which were detained should not be signed and the goods to be confiscated in terms of Section 111 of the Customs Act, 1962, (the Act). The appellant submitted their reply and the show cause notice was adjudicated culminating in an order-in-original dated 31.10.2005, confiscating the goods under Section 111(m) and (o) of the Act with an option to redeem the goods on payment of redemption fine of Rs. 25,00,000/- as penalty in lien of confiscation under Section 125 of the Act. The sum of Rs. 38,74,372/- was demanded as duty along with interest. The appellant challenged the order before the Customs Excise and Services Tax Appellate Tribunal, East Zone Bench, Kolkata (the tribunal). The tribunal by order dated 08.09.2008 remanded the matter to the adjudicating authority with certain observations. This order was challenged by the appellant before this Court in CUSTA No. 06 of 2009. While the appeal was pending, the adjudicating authority took up the matter for de novo consideration in terms of the order passed by the tribunal and passed the order dated 05.01.2018 reiterating the conclusions which were arrived at in the first order-in-original dated 31.10.2005. The appellant unconditionally accepted the order paid the entire amount which was demanded in the order-in-original namely fine in lien of the confiscation, duty, interest and penalty. After the payment of the amounts as quantified in the order-in-original dated 05.01.2018, seven out of the eight containers which were in the custody in the DRI were released to the appellant however one of the container was not released as it was in a bonded warehouse of the Central Warehousing Corporation (CWC). The said container was not released on the ground that unless and until the appellant pays the warehousing charges/rent to the CWC, the same cannot be released. By communication dated 29.03.2019, the Assistant Commissioner of Customs directed the appellant to pay the charges since the goods were kept from October 2002 and the amendment to Section 68 of the Act made in 2016 would not be applicable. The appellant had accordingly paid the amount under protest on 24.08.2019 and thereafter filed the writ petition for the aforementioned relief.

5. The learned single bench noted that under the pre-amended Section 68, there was a provision that the goods which were warehoused may be cleared for home consumption after paying rent how