Calcutta High Court
Sri Sunil Tosawar vs The Commissioner Of Customs ... on 17 July, 2017
Author: Debangsu Basak
Bench: Debangsu Basak
ORDER SHEET
W.P. No. 377 of 2017
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
SRI SUNIL TOSAWAR
Versus
THE COMMISSIONER OF CUSTOMS (PREVENTIVE), W.B., KOLKATA
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : 17th July, 2017.
For Petitioner : Mr. Arijit Chakraborty with
Mr. K.K. Maiti & Mr. Nilotpal Chowdhury, Advs.
For Respondent : Mr. Somnath Ganguli with
Mr. Bhaskar Prasad Banerjee, Advs.
The petitioner assails an order dated March 31, 2017 passed by the Commissioner of Customs [Preventive], West Bengal, Kolkata.
Learned Advocate for the petitioner raises two issues in the present writ petition. He submits that, the petitioner was not afforded a right of cross-examination of the noticee nos. 1, 2 and 8 in spite of request being made therefor. Therefore, the impugned order suffers from the vice of breach of the principles of natural justice. He questions the quantum of penalty imposed upon the petitioner and submits that, the imposition is de hors the provisions of Section 112 of the Customs Act, 1962. 2
Learned advocate for the petitioners relies upon a judgment and order dated April 28, 2016 passed in W.P. No. 279 of 2016 (Gopal Saha vs. Union of India & Anr.). He also refers to an order dated December 21, 2016 passed in W.P. No. 1011 of 2016 (Barik Biswas vs. Union of India & Ors.). He submits that, the Custom Authorities are not entitled to impose penalty in terms of Section 112(i) of the Customs Act, 1962 as such provisions are not attracted to the fact of the present case. He submits that, in Gopal Saha (supra) it has been held that the Authorities have acted without jurisdiction in doing so. He submits that, in Barik Biswas (supra) the Court has followed Gopal Saha (supra) and has stayed the recovery proceedings for a specific period of time. He further submits that, although Gopal Saha (supra) is under appeal, the same has not been set aside by the Appellate Court.
The respondent Authorities are represented.
The issues raised in the writ petition are such, an opportunity should be afforded to the respondents to file affidavit.
Let affidavit-in-opposition be filed within three weeks from date; reply thereto, if any, be filed within a week thereafter. The writ petition will be treated as ready for hearing immediately on completion of the time period fixed for filing affidavits. Liberty to the parties to mention for early hearing. 3
In view of Gopal Saha (supra) and Barik Biswas (supra), it would be appropriate to direct that, no steps shall be taken for realisation of the penalties from the petitioners without obtaining the leave of the Court till August 31, 2017or until further order, whichever is earlier.
(DEBANGSU BASAK, J.) K. Banerjee A.R. [C.R.]