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2019 DIGILAW 125 (MEG)

Rajesh Lapang v. K. Ashi Kheiya

2019-04-29

MOHAMMAD YAQOOB MIR

body2019
JUDGMENT : 1. During the course of the submission as made by the learned counsel for the parties it appeared that in the judgment dated 16-11-2018 rendered in Cus.Appl.No. 3 of 2018 disobedience of which is claimed, a typographical error has crept in para 8 and para 9 of the judgment i.e., word respondent in line No. 1 of para 8 and in line No. 3 of para 9 has to be appellant. Rectification of the said error is also not opposed by the learned counsel for the parties, rightly so, therefore, the word respondent as has appeared in line No. 1 of para 8 and line No. 3 of para 9 dated 16-11-2018 shall be read as appellant. Copy of this order shall be placed on the records of Cus.Appl.No.3 of 2018 titled The Commissioner of Customs (Preventive) N.E.R., Shillong v. Rajesh Lapang & Ors. 2. The adjudicating authority in its order in original apart from confiscating the betel nuts has also observed that Shri. Lapang (petitioner herein) may not be the genuine owner. 3. In appeal before the CESTAT Eastern Zonal Bench, Kolkata, the issue regarding genuineness of the claim of ownership has not been looked into. The Tribunal has held that the revenue has failed to discharge the onus to the effect that the betel nuts were of foreign origin, as such confiscation proceedings were set aside, dissatisfied therewith, Cus. Appl. No. 3 of 2018 was filed before this Court unsuccessfully. 4. The respondent, Mr. Lapang had also filed a writ petition bearing WP(C). No. 131/2018 wherein he had sought release of the sale proceeds of the confiscated goods (betel nuts) amounting to Rs. 66,51,140/- (Rupees sixty six lakhs, fifty one thousand, one hundred and forty). The said writ petition was disposed of with an observation that the petitioner has efficacious remedy i.e., to lay a motion before the CESTAT which he has done but learned Tribunal has disposed of the application vide its order dated 28-01-2019 observing therein that High Court had dismissed the departments appeal and also dismissed the writ petition filed by the writ petitioner, therefore, held doctrine of merger has come into play as the Tribunals order merged with the order of the High Court, accordingly the applications were dismissed. 5. Faced with the aforesaid position having no other remedy available, Mr. 5. Faced with the aforesaid position having no other remedy available, Mr. Lapang has filed the instant petition for initiating contempt proceedings against the respondents. 6. Petitioner was asked to justify the maintainability of this contempt petition, he has filed an additional affidavit and relied upon the judgment of the Honble Apex Court rendered in the case of T.Sudhakar Prasad v. Govt. of Andhra Pradesh & Ors. Appeal (Civil) 5089 1998 and Appeal (Civil) 5090 1998 decided on 13 December, 2000. In the said background, contempt proceedings survive for consideration. 7. Dr. N.Mozika, learned counsel for the respondents (alleged contemnors) would contend that there is doubt about the claim of ownership by Mr. Lapang, but Mr. Lapang is the person against whom proceedings were initiated and it is he who had appeared before the adjudicating authority and claimed to be the owner. The adjudicating authority raising doubt about the claim of the owner has confiscated the goods and sale proceeds have been deposited in the Bank. The appellate authority has set aside the order of the adjudicating authority, but has not said anything adverse to the claim of Mr. Lapang. 8. Now the question arises as to what was the prayer made in the appeal as filed by Mr. Lapang before the CESTAT because learned Tribunal has allowed the appeals. 9. It is the contention of the learned counsel for the petitioner that once the order of adjudicating authority has been set aside by the appellate authority, appeal of Mr. Lapang has been allowed which order of the appellate authority has been upheld in another appeal by this Court, therefore there is no scope to challenge the ownership of the petitioner. She seeks time to place on record copies of the appeal wherefrom it can be ascertained as to what was the prayer made in the appeal filed before CESTAT. 10. List again tomorrow.