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2016 DIGILAW 355 (CAL)

Daulal Sarda v. Union of India

2016-04-15

SANJIB BANERJEE

body2016
ORDER : Sanjib Banerjee, J. Sufficient grounds have been made out as to why the petitioner was not represented on January 28, 2016 when W.P. No. 674 of 2015 was dismissed for default. 2. The order dated January 28, 2016 is recalled and W.P. No. 674 of 2015 is restored to the file. 3. The restoration application, G.A. No. 645 of 2016, is allowed as above, but without any order as to costs. 4. Since the Customs authorities are represented, W.P. No. 674 of 2015 is taken up for immediate consideration. 5. The petition is another attempt to short-circuit a process and obtain the release of the goods seized by the Customs authorities without replying to a show cause notice issued under Section 124 of the Customs Act, 1962. 6. According to the petitioner, betel nuts acquired in the State of Assam were transported by the petitioner to a railway siding in Kolkata. The goods were seized by the Customs authorities on the suspicion that they were liable to be confiscated. The petitioner says that betel nuts of Assamese origin transported from Assam to the State for their onward transportation or use could not have been seized by the Customs authorities and there was no occasion for the Customs authorities to suspect that the goods were liable to confiscation. 7. The petitioner has obtained the release of the goods by securing the duty thereon by way of a bank guarantee. The petitioner represents that the bank guarantee is alive and that the bank guarantee will be kept alive till such time that the matter is decided finally. According to the petitioner, despite the several representations made by the petitioner to the respondent authorities, the respondent authorities have not replied to such representations and have proceeded to issue the impugned show cause notice dated July 27, 2015. The petitioner claims that the goods were seized at a place which was not notified and betel nuts are otherwise non-notified goods that can be freely carried by any person from one part of the country to another. The petitioner contends that the show cause notice does not make out the ingredients of anything impermissible committed by the petitioner under any of the limbs of Section 111 of the said Act of 1962 referred to therein. 8. The petitioner contends that the show cause notice does not make out the ingredients of anything impermissible committed by the petitioner under any of the limbs of Section 111 of the said Act of 1962 referred to therein. 8. The petitioner also claims that the entire basis of the show cause notice is founded on a report of a private testing house in Mangalore which has rendered an opinion that the seized goods are not of Indian origin. The petitioner relies on a Single Bench judgment of the Patna High Court in Miscellaneous Jurisdiction Case No. 2185 of 2013, in Civil Writ Jurisdiction Case No. 3784 of 2013 (Union of India v. Salsar Transport Company). In that case, the Union applied for modification of an order passed on a pending petition under Article 226 of the Constitution. The Union relied on a report of Arecanut Research and Development Foundation, Mangalore to assert that the seized goods in that case were not fit for human consumption. The Single Bench observed, inter alia, as follows in the key paragraph of the judgment that has been placed : "From the materials placed on the record by learned counsels for the parties I am also of the view that the sample has not been drawn in accordance with the provisions of Section 47 and Rule 2.4 of the Food Safety and Standards Act and Rules. So far as the reliance on the report by M/s. Arecanut Research & Development Foundation, Mangalore is concerned, the petitioners have totally failed to bring on record any material to show that it is an accredited laboratory by a competent authority under the Act and Rules. Hence, no legal liability can flow from the report of such an institution." 9. There are two aspects to the observation in the judgment quoted above : the first being that the samples were illegally drawn; and, the second being that the Union failed to demonstrate that the institute where the samples were tested was accredited as an authorized testing house by any official document under the applicable statute. 10. The considerations in the present case are quite removed from the Patna judgment. The testing in that case was under the Food Safety and Standards Act and the Rules thereunder. Here, the betel nuts have been seized on the ground that they were liable to confiscation under the Customs Act. 10. The considerations in the present case are quite removed from the Patna judgment. The testing in that case was under the Food Safety and Standards Act and the Rules thereunder. Here, the betel nuts have been seized on the ground that they were liable to confiscation under the Customs Act. Secondly, in the Patna Case, the opinion rendered by the test-house was that the betel nuts were not fit for human consumption; here, the Customs authorities sought the view of the test-house whether the goods were of Indian origin and it is the opinion of the test-house that the goods are of foreign origin. Most importantly, the Union had applied to have the status quo subsisting on the basis of an effective order to be disturbed on the basis of a report that was found not to have been prepared by an agency accredited for such purpose. Here, the petitioner questions the propriety of a show cause notice by citing the Patna judgment to show that the same test-house is an unauthorised testing centre, though the applicable statute is not the same. 11. Remarkably, the Division Bench judgment of the Patna case has been cited, where the Division Bench merely refused to interfere with the discretion exercised by the Single Bench in not modifying a subsisting interlocutory order. The petitioner herein also says that a special leave petition carried from the Division Bench order failed before the Supreme Court. It is elementary that the refusal by the Supreme Court to grant special leave to file an appeal is scarcely citable authority or a precedent. The Supreme Court may merely have found that the matter was not of such public importance that warranted special leave to be granted for the appeal to be considered by the highest Court of the land; it does not imply that the Supreme Court endorsed that the Mangalore test-house was unauthorized for all purposes. 12. Show cause notices are not challenged for the mere asking nor are such notices, which herald the initiation of any proceedings, treated lightly by Courts to be interfered with on the slightest pretext. 12. Show cause notices are not challenged for the mere asking nor are such notices, which herald the initiation of any proceedings, treated lightly by Courts to be interfered with on the slightest pretext. High authorities instruct that unless a show cause notice is demonstrated to be without jurisdiction or absurd on the face of it or palpably erroneous to the meanest mind, Courts must refrain from interfering therewith on the ground that it is always open to the noticee to respond to such notice and urge all grounds to discredit the allegations contained in the show cause notice or the suspicions harboured against the noticee by the issuing authority. The petitioner has come on very flimsy grounds to challenge the show cause notice. Nothing is brought to show that the Customs authorities could not have seized the goods from wherever they were seized in Kolkata or that the institute whereat the goods were tested could not have been approached for such purpose. No law or any official document has been produced either in support of the petitioner's contention that the seizure was illegal or in support of the petitioner's assertion that the test-house cannot be approached by the Customs authorities for any purpose whatsoever. The additional ground, equally laughable and fallacious, urged on behalf of the petitioner is that there is a rivalry between South Indian betel nut growers and the betel nut growers in the North-East such that any report of North-East betel nut sought from a test-house run by the cooperative of South Indian betel nut growers would only be to the chagrin of the North-East betel nut growers. 13. For whatever the grounds that have been urged in course of the present petition may be worth, however, the petitioner is not prevented from repeating the same in response to the show cause notice and taking any other grounds that may be available to him. The petitioner has not been able to make the kind of dent in the show cause notice that would entitle the petitioner to obtain either a stay thereof or the quashing of such notice. For the petitioner's exercise of this present frivolity, the petitioner will immediately pay costs assessed at Rs. The petitioner has not been able to make the kind of dent in the show cause notice that would entitle the petitioner to obtain either a stay thereof or the quashing of such notice. For the petitioner's exercise of this present frivolity, the petitioner will immediately pay costs assessed at Rs. 50,000/- to the Customs authorities, which will abide by the final outcome of the proceedings that may be instituted against the petitioner upon the matters covered by the show cause notice being decided by the Department as expeditiously as possible. 14. W.P. No. 674 of 2015 is disposed of. 15. Urgent certified website copies of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.