K. Vinod Chandran, J.

1. Both the appeals are filed by the official respondents (Customs Preventive Division) against the common judgment passed in two writ petitions filed by the wife and children of a "defaulter" under the Customs Act, 1962 (hereinafter referred to as "the Act") and proceeded against under the Customs (Attachment of Property of Defaulters for Recovery of Government Dues) Rules, 1995 (hereinafter referred to as "the Rules"); the Rules having been framed in exercise of the powers conferred under Section 156 read with Section 142 of the Act.

2. The issue, in a short compass, is whether, for dues of the "defaulter"; the appellants, viz., wife and children of the defaulter, are entitled to be proceeded against and the properties standing in their name, applied to the satisfaction of such dues of the defaulter; on the premise that the same were in fact purchased by the defaulter and that the purchase in favour of the defaulter's dependants and in one instance the conveyance made to his son are to defeat the recovery of dues to the appellant-Department. The transactions with respect to the properties thus not disclosing the true nature of ownership; in any event being in the control of the "defaulter", the same are liable to be proceeded against for dues of the defaulter, is the contention of the appellant.

3. The brief facts leading to the recovery proceedings are that the defaulter was running a proprietary business, in the course of which he imported CF Lamps from China into India. The goods were cleared as per Bill of Entry dated 28.12.2001 by paying the customs duty and not the Anti-Dumping Duty. Admittedly the Government of India had imposed Anti-Dumping Duty by a notification dated 21.12.2001, seven days before the actual clearance, which again admittedly was not even in the notice of the officials of the Department. It is clearly admitted that by an inadvertence triggered by ignorance the goods were cleared without imposition of Anti-Dumping Duty and later show cause notice for levy of such Anti-Dumping Duty was issued on 13.02.2003, imposing a duty of Rs.97,35,379/- under Section 28(2) of the Act. The levy is not in dispute, since we are told that the same has attained finality with the dismissal of a Special Leave Petition filed by the defaulter.

4. The Department has not detailed the various proceedings before the different forums, being the adjudicating authorities or the Courts; with respect to the levy as such and whether there were any interim orders staying the recovery. The appellants for their part assert ignorance of any of the proceedings since the 'defaulter' though alive, is living separated. From the records we discern that the show cause notice was issued on 13.02.2003 and after finalization of the proceedings before the Supreme Court, a notice was issued on 06.12.2010 produced as Exhibits P4 and P8 [respectively in the writ petition of the wife, W.P. (C).No.31429 of 2011, and the two sons, W.P.(C).No.28292 of 2011].

5. The said notice, purporting to be under the Rules issued under Section 156 read with Section 142 of the Act, speaks of a notice under Section 142(1)(c)(ii) of the Act read with Rule 4 of the Rules issued to the defaulter. It also speaks of an enquiry conducted by the Department, which revealed that certain properties were in the possession of the wife and sons of the defaulter. It stated that the defaulter having been served with the notice under Rule 4, it shall not be competent to mortgage, charge, lease or otherwise deal with any property belonging to him under Rule 9 of the Rules. It also spoke of a suit filed by the wife of the defaulter for declaration and consequential injunction against the appellants, which suit stood dismissed. The notice than requested the Sub Registrar, the addressee, not to allow mortgage, charge, lease or otherwise deal with any property belonging to the aforesaid persons. Hence obviously the levy was on the defaulter and so was the s