Calcutta High Court
Kavita Phumbhra vs Commissioner Of Customs (Port) on 19 November, 2009
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
GA No. 2284 of 2009
CUSTA No. 10 of 2009
IN THE HIGH COURT AT CALCUTTA
SPECIAL JURISDICTION ( INCOME TAX )
ORIGINAL SIDE
KAVITA PHUMBHRA
Versus
COMMISSIONER OF CUSTOMS (PORT), CALCUTTA
BEFORE:
The Hon'ble JUSTICE KALYAN JYOTI SENGUPTA
The Hon'ble JUSTICE I. P. MUKERJI
Date : 19th November, 2009.
The Court :- This appeal will be heard out on two points formulated hereinbelow ;-
1) Whether the Additional Commissioner of Customs, the Appellate Authority
and Learned Tribunal were justified under the law in not taking into
consideration of the evidence adduced before the aforesaid fora in
confiscating the goods of the appellant ?
2) Whether the evidence adduced before those fora are legal evidence for
deciding the issue or not ?
Since the appeal has been admitted and having regard to the facts and
circumstances of the case particularly when we find almost concurrent findings of all the fora
below that materials in question are obscene, at this stage it will be very risky to allow the stay of
operation of the order impugned and hence we reject this prayer but the materials in custody of the
department shall be kept and preserved properly and this must not be divulged or parted with to
anyone else. We are of the view that balance of convenience will also not permit to pass any order
of stay as prayed for. In the event stay is granted the department will be compelled to release the
material and in that case it would have serious repercussion in the event later on it is found that
the appeal is not sustainable and order of all the fora are justified. On the other hand, if the appeal
succeeds the appellant does not stand to suffer as the materials may be released and utilised for
which the same are imported.
2
Mr. Hazra, appearing for the department submits that in view of this order he does
not want to file any affidavit-in-opposition and he suggests that this application for interim relief
should be disposed of finally. Accordingly, we accept his suggestion and dispose of this
application finally in terms of this order.
However, we record that the allegations contained in the petition are not admitted
by the department since no affidavit-in-opposition has been called upon to be filed.
Let the necessary notice be issued upon putting in requisites, if any. Mr. Hazra,
learned Counsel for the respondent waives the Notice of Apepal. Let the requisite number of paper
books be filed on or before the following day of reopening of Christmas Vacation.
All parties are to act on a xerox signed copy of this order on the usual undertakings.
(KALYAN JYOTI SENGUPTA, J.) (I. P. MUKERJI, J.) GH.