K.S. Radhakrishnan, J.

The question that is posed for consideration in these case is whether the amount of penalty could be recovered under Section 142 (1) (c) (i) of the Customs Act read with Kerala Revenue Recovery Act against the personal properties left behind by the defaulters for an offence of smuggling which is against the national interest?

2. Petitioner in O.P.Nos.21354 of 1999 and 28882 of 2002 are the son and daughter of one late Kallatra Abdul Khader Haji and the petitioner in O.P.No.20917 of 1999 is the wife of one late M.B. Moosa. The reliefs sought for in all the original petitions are identical. Petitioners have sought for a declaration that they are not liable to pay the penalty due from their predecessors' interest and that the movable and immovable properties are not liable to be proceeded with for the recovery of the amounts due from late Abdul Khader Haji and Moosa respectively.

3. Customs Authorities had intercepted a fishing boat on 22.3.1974 from Neeleswaram coast with 86 silver ingots said to be illegally transported from Neeleswaram to a foreign country. Enquiry conducted had revealed that husband of the petitioner in O.P.No.20917 of 1999 by same Moosa and father of the petitioners in O.P.Nos.21354 and 28882 of 2002 by name Kallatra Abdul Khader Haji were involved in the illegal transportation of silver ingots and were found guilty of offence under Section 111 (d) of the Customs Act, 1962. Goods were confiscated and penalty of Rs.5 lakhs was imposed on Kallatra Abdul Khader Haji and Rs.3 lakhs on M.B. Moosa. Appeals were filed before the Central Board of Excise and Customs against the original order C.No.VIII/10/9/74 Cus. Adj. dated 18.8.1977 passed by the Collector of customs and Central Excise and the appeals were rejected by the appellate authority. Appeals Nos.398 to 408 preferred against the above mentioned order before the Central Board of Excise and customs, New Delhi were also dismissed as per order dated 21.2.1980. Relevant portion of the order reads as follows:

"As regards Kallatra Abdul Kader Haji, the Board observes that the plea that thee has been no unauthorized export is belied by the facts relating to the seizure. The plea of duress is also not tenable. His statement together with that of others, his interception in a hotel (away from his place of residence) where he had booked under another names, the use of this boat etc. clearly go against this. Therefore, he has been correctly penalized and his appeal is rejected.

"As regards the appellant Shri M.B. Moosa, the Board observes that the plea that the boat carrying the silver was proceeding towards the coast is belied by the facts relating to the seizure. It is quite clear that unauthorized export was being effected when the goods were seized. The role of the appellant in organizing the export has been clearly established and he has been correctly penalized. His appeal is accordingly rejected."

Proceedings initiated for imposing penalty have therefore become final. Customs Authorities had sent several notices to the above mentioned persons for remitting the penalty imposed on them. Penalty amounts were not paid. Later attempts were made by the Customs Authorities to initiate action under Section 142 (1) c (i) of the customs Act to recover the amounts from the properties owned by them as if it were arrears of land revenue. The Assistant Collector, Special Customs Preventive Division then issued a demand notice in Form No.24 dated 4.7.1978 under Section 69 (2) of the Revenue Recovery Act and directed the District Collector for Customs to collect the penalty as if it were arrears of public revenue due on land. Notice dated 18.8.1979 was also issued to Moosa to remit the amount of penalty failing which it was ordered that the amount would be recovered through revenue recovery under the Revenue Recovery Act. Further we also notice that the Assistant Collector, Special customs Preventive Division, Calicut had initiated certificate acti