Calcutta High Court (Appellete Side)
Asian Tea & Exports Limited & Anr vs Union Of India & Ors on 27 March, 2019
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
1
27.03.2019
ss
2 W.P.21382(W) of 2018
With
C.A.N. 1804 of 2019
Asian Tea & Exports Limited & anr.
Vs.
Union of India & ors.
Mr. Arindam Banerjee
Mr. Sandip Agarwal
Mr. Tanay Agarwal
... For the petitioners
Mr. Kaushik Chandra, Ld. A.S.G.
Mr. Subhankar Chakraborty
Mr. Dibasish Basu
Mr. Loknath Chatterjee
Mr. Saptarshi Bhattacharjee
... For Union of India
Mr. U. S. Bhattacharya
Mr. Bhaskar Prasad Banerjee
... For the Customs authority
This matter has been taken up today on the third occasion. It was taken
up in the morning. On the submission made by Mr. Bhattacharya, learned
Advocate appearing on behalf of the Customs authorities I had kept the matter
after recess for him to bring revised instructions. Such revised instructions have
been brought by him but due to unfortunate phraseology of the instructions,
which are kept on record, I had once again posted the matter till 3 p.m. today, as
a last occasion before issuing a suo motu rule of contempt. The said revised
instructions have been framed as an office note by the Joint Commissioner of
Customs to the Deputy Commissioner of Customs. The intention behind such
office note is clearly to give some benefit to the writ petitioner while preserving
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the right of appeal and to obtain an order of stay from the Hon'ble Division
Bench.
However, Mr. Bhattacharya, learned Advocate appearing on behalf of the
Customs authorities very frankly and fairly submits that due to a communication
gap, the first sentence of the so-called office notes, which are in the nature of
revised instructions, seems to demonstrate that it is an order directing the
subordinate officer of Customs department to release the special consignment
provisionally on terms and conditions which are alien to my order dated March 7,
2019. He asked me to ignore the unfortunate phraseology and look at the
intention behind the said instructions which were meant for him and not a
measure to modify the interim order passed by this Court by a subordinate
authority.
After considering the matter and its entirety, I am satisfied that there was
no intention by the Customs authorities to commit contempt of this Court and
hence I treat the office note to be revised instructions.
So far as the proposal made by the Customs is concerned, I find that
instead of asking for the full amount in advance it has asked for bond and bank
guarantee covering 10% of the provisional fine and provisional penalty in case
the writ petition fails.
Mr. Banerjee, learned Counsel appearing on behalf of the petitioners
submits on instruction that this proposal is not acceptable to his clients because
the Customs authorities have neither preferred any appeal from the original
interim order which has spent its force nor has the Customs authority obtained
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any modification of my order dated March 7, 2019 and it has not yet obtained
stay of the said order in the pending appeal. He submits that the intention of the
Customs authorities is to avoid complying with my order while flouting blatantly
with contempt - that is to say, the Customs authorities are flirting dangerously
with the thin line between contumacious conduct and that which they are
entitled to do. Accordingly, he submits that the said offer is neither equitable nor
worthy of consideration by this Court.
Since the Customs authorities have already preferred an appeal and
affirmed an application for stay and the same has been filed, it is only proper
that the Customs authorities get a chance to have the application for stay heard
out before my order is given its logical consequence.
However, I see from my order dated March 7, 2019 that I had expressly
held as follows :
" Qualitatively there is no distinction between the products concerned
which were thus allowed to be brought by the petitioners by the respondent-
authorities prior to February 5, 2019 and subsequent to February, 5, 2019. The goods being perishable cannot continue to remain without being released by the Customs authorities in favour of the petitioners, unless some arrangement is made to compensate the petitioners for the injury that they would suffer on the deterioration of the said perishable goods." My interim order had not set out any time frame within which the goods were to be released on submission of an undertaking by the petitioner. Therefore, it cannot be said that by waiting for a statutory period within which an appeal could be preferred, any violation has been committed of that order. 4
I therefore, modify my original interim order dated March 7, 2019 by directing that for every day that the said goods are not released by the Customs authorities and not allowed to be removed by the petitioners from the warehouse, the Customs authorities shall make payment of damages which would be assessed by two Special Referees being Mr. Aryak Dutt, Advocate and Mr. Jishnu Chowdhury, Advocate within 72 hours from the date of communication of a plain copy of this order. Such damages shall be paid to the petitioners subject to result of the stay application which will be moved by the Customs authorities by April 6, 2019, as assured by the learned Counsel for the respondent, Customs authorities. Their remuneration shall be fixed on a subsequent date.
Photostat plain copy of this order duly countersigned by the Assistant Registrar (Court) be handed over to the appearing parties on usual undertaking.
(Protik Prakash Banerjee, J.)