The main legal point established in the judgment is the liability of the Customs Authorities for auctioned goods and the application of the doctrine of restitution.

( 1 ) WHETHER the Customs Authorities or the International Airport Authority of India would be liable to pay the price of imported goods which had been sold on auction by the later, is the question involved in this writ petition.

( 2 ) THE petitioner imported GS software in India. The assessed value of the said software. was Rs. 67 lakhs. A sum of Rs. 711,388. 00 was paid by the petitioner by way of Customs Duty. The first respondent however held that the goods were hard disk drives and not software loaded on hard disk drivers whereupon a show cause notice was issued to the petitioner demanding additional duty of Rs. 24,00,933. 00. The petitioner replied to the said show cause notice. The goods were specified as software in terms of Chapter 8471. 93 read with notification No. 59/95 dated 16/03/1995 attracting customs duty @ 25%. Against the said order the petitioner preferred TO an appeal before the CEGAT which was marked as Appeal No. 161/96/92. The appeal was dismissed by an order dated 14. 2. 1999. The goods in question, in the meantime, were handed over to International Airport Authority. It appears that said goods were put to auction on 24-4-1998.

( 3 ) THE petitioner in the meanwhile had preferred TO an appeal to the Supreme Court in terms of Section 130e of the said Act which was marked as Civil Appeal No. 5582/1999. The said appeal was allowed by the Apex Court vide order dated 20-1-2000 holding that the software imported were assessable at the rate of ten percent as per Heading 8. 24.

( 4 ) THE petitioner prayed for release of the goods pursuant to the directions of the Apex court of the said goods on 9/02/2000, 15th and 31/03/20000 but only on 18/04/2000, the petitioner received a reply to the effect that it would have to approach the second respondent for obtaining delivery of the goods. The petitioner as per advice of respondent No. 1 approached the second respondent on 1/05/2000 but no reply to its letter was received. The petitioner thereafter addressed another letter dated 29/05/2000 to the first respondent and having received no response in relation thereto, a notice of demand was issued on 8/09/2000. On or about 20/10/2000 in its letter the petitioner lamented the silence on the part of the respondents and communicated that their continued silence would amount to contempt of the Supreme Court of India whereafter only respondent No. 2 vide letter dated 31/10/2000 sought for further detail as regards the goods imported which was promptly furnished by the petitioner on 31st October, and 4/11/2000. To its dismay a communication was received by the petitioner on 15. 11. 2000 from respondent No. 2 that the goods had been sold in auction on 24. 4. 1998. In the aforementioned situation this writ petition was filed.

( 5 ) LEARNED counsel for the petitioner would urge that the first respondent was primarily responsible for return of the seized goods. In support of the said proposition the petitioner has placed reliance on Ashok Dhawan v. UOI (1990) 47 ELT 218, Singhal Paints v. Collector of C. Ex Allahabad and (1999) 106 ELT 16. The value of the goods, according to the learned counsel should be assessed in July, 1995 which would be to the tune of Rs. 65 lakhs.

( 6 ) MR Sood, learned Addl Solicitor General, however, would submit that the petitioner could have got the goods cleared by paying differential amount of customs duty. Mr Sidhu, learned counsel appearing for the second respondent would contend that his client was not a necessary party. According to him, the second respondent being a bailee having regard to the provisions of Section 148 of the Indian Contract Act, even in case of any breach on its part, was liable to pay damages only to the bailor and the customs authorities only are liable for payment of value of the goods to the assessee.

( 7 ) IT is not in dispute that in a case of this nature, the doctrine of restitution must be applied.

( 8 ) CLEARANCE of import and export of goods is dealt with i