Judgment:
OD-6 ORDER
SHEET IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE WP955of 2016 RAJESH KUMAR JAISWAL Versus COMMISSIONER OF CUSTOMS (PREVENTIVE) & ORS.BEFORE: The Hon'ble JUSTICE DEBANGSU BASAK Date : 13th June, 2017.
Appearance: Mr.A.Chakraborti, Adv.Mr.A.K.
Bhattacharya, Adv.Mr.N.Chowdhury, Adv.… for the petitioner Mr.A.Ray, Adv.Mr.B.P.
Banerjee, Adv.… for the respondents.
The Court : The Court: The petitioner seeks delivery of 5058.9 kgs of nickel-silver scrap from the authorities.
The learned Advocate for the petitioner submits that the authorities had seized three consignments of nickel-silver scrap belonging to the petitioner.
A proceeding for confiscation was initiated which traveled upto the Supreme Court of India.
At all stages the proceedings were decided in favour of the petitioneRs.The confiscation was held to be bad.
The authorities were directed to return the seized materials.
He submits that, at the time of seizure, 298 lumps of the materials were seized and six samples out of the three consignments were taken for the purpose of testing.
He refers to the order-in-original of the Customs Authorities and submits that the adjudicating authority had relied upon the test report submitted on behalf of the authorities.
The report speaks of the materials to be nickel-silver scrap.
Thereafter, on the basis of the order of the Hon’ble Supreme Court of India directing the release of the materials to the petitioner, the petitioner had approached the authorities for the purpose of taking delivery.
At the point of taking delivery, the petitioner was surprised to learn that the petitioner was being offered metal scrap rather than nickel-silver scrap.
The petitioner did not take delivery after protesting about the same.
The petitioner seeks the materials as confisticated or the value thereof.
The learned advocate for the department submits that there are disputed questions of fact involved in this case.
The department had taken custody of the materials covered under three consignments considering 298 lumps.
The department had also undertaken a test of six samples out of the 298 lumps.
The entirety of the lumps were not tested.
The six samples had been produced results as noted in the orderin-original.
He submits that, the materials seized were stored at a godown which was kept under lock and key and was sealed.
The lock and the seal were not tampered with.
There was no possibility of the godown being accessed without any notice by any unauthorised person.
In fact, the godown was not accessed at all apart from the time to make over possession of the materials to the petitioner.
As to the disputed questions of facts with regard to the quality of the materials being involved, he submits that, it would be proper for the petitioner to file an appropriate proceedings for the purpose of realisation of its claim, if any.
He further submits that there are 51 lumps of nickel-silver scrap available for the purpose of delivery to the petitioner.
The balance is metal scrap.
The Court should hold that the three consignments of the petitioner consisted of 51 lumps of nickel-silver scrap and the balance as metal scrap.
I have considered the rival contentions of the parties and the materials made available on record.
The Customs Authorities had confiscated three consignments of materials belonging to the petitioner.
In the confiscation proceedings, the Customs Authorities had drawn six samples of three consignments and found them to be of nickel-silver scrap.
The confiscation proceedings noted such result of list.
The confiscation proceedings ended in the order dated September 30, 2015.
By such order, the Hon’ble Supreme Court had directed to return the confiscated materials to the petitioner.
The petitioner had thereafter approached the Customs Authorities for the purpose of return of the seized materials.
A number of letters were exchanged between the parties in this regard.
Ultimately being dissatisfied with the materials offered for release, the petitioner did not accept the same.
It appears from the records that the Customs Authorities had undertaken sample test of the materials sought to be confiscated.
The report of the sample test shows that the materials were of nickel-silver scrap.
The Customs Authorities had proceeded on such basis as also the petitioner.
The release of the materials was directed not on the basis that the seized materials were not of nickel-silver scrap.
The factum of the materials seized being nickel-solver scrap stood adjudicated upon as well as accepted and acted upon by the parties in the proceedings for confiscation.
Therefore, the parties should not be allowed to take a stand which is contrary to that taken by the parties in the confiscation proceedings.
At the time of taking release of the materials the petitioner has found that the materials offered for release are not of nickel-silver scrap.
They are justified in refusing to receive the materials which were sought to be tendered to the petitioner.
The materials offered for release are not the same as those seized.
The contention that there are disputed questions of facts involved cannot be accepted.
There is no dispute to the fact that the materials seized were of nickel-silver scrap.
The Customs Authorities cannot be permitted to take a stand contrary to the stand taken in the confiscation proceedings by them with respect to the quality of the materials seized.
The quantum of the materials seized is not in dispute.
Therefore, there is no dispute which should await trial by a regular Civil Court.
The learned advocate for the department submits that the valuation of the entire consignments was kept at Rs.5 lakhs in the adjudication proceedings.
With respect, such contention is not available at the time of release of the materials as the Customs Authorities are obliged to release the materials or pay adequate compensation in respect thereof.
The right to receive the seized materials accrued on September 30, 2015 The value of the materials have to be looked at on such date for the purpose of determining the true compensation receivable by the petitioner.
According to the Customs Authorities, 51 lumps are of nickel-silver scrap.
If that be so the petitioner is at liberty to receive the delivery of 51 lumps of nickel-silver scrap from the Customs Authorities.
The Customs Authorities will weigh such materials at the time of delivery and pray compensation for the balance of the 5058.9 kgs materials.
Such compensation be calculated at the rate of value of the nickel-silver scrap as on the date of the passing of the order by the Hon’ble Supreme Court of India on May 30, 2015.
The Customs Authorities will obtain a valuation of the nickel-silver scrap as at September 30, 2015 from any of its empanelled valuer.
The Customs Authorities will make over the materials as directed as also the compensation as directed hereinabove within a period of four weeks from date hereof.
WP No.955 of 2016 is disposed of without any order as to costs.
(DEBANGSU BASAK, J.) G.S.Das