Calcutta High Court
Vinod Kumar Jain vs Commissioner Of Customs(Port) ... on 29 September, 2021
OD 4
ORDER SHEET
WPO 874 of 2021
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
VINOD KUMAR JAIN
Vs.
COMMISSIONER OF CUSTOMS(PORT) AND ORS.
BEFORE:
The Hon'ble JUSTICE MD. NIZAMUDDIN
Date : 29th September, 2021.
(Via Video Conference)
Mr. Sudhir Mehta,Adv.
Mr. Anurag Bagaria, Adv.
...for the petitioner
Mr. K.K. Maiti, Adv.
Mr. Abhradip Maity, Adv.
...for the respondents
The Court: In this writ petition petitioner is aggrieved by the
impugned action of the respondent Customs Authorities concerned in
not allowing warehousing of the goods in question and also not
considering the petitioner's prayer for re-testing of the goods in
question inspite of the order of the Commissioner of Customs
(Appeals) dated 11th August, 2021 being annexure P-9 to the writ
petition. Petitioner submits that this order of the Appellate Authority
is binding upon the subordinate authority. It has brought to my notice
that during the pendency of this writ petition one of the grievances of
the petitioner has been redressed by the order of the respondent
Authority concerned dated 28th September, 2021 by which prayer of
the petitioner for warehousing of the goods in question has been
considered but prayer of the petitioner for re-testing of the goods in
question in compliance of the order dated 11th August, 2021 by the
Appellate Authority has still not been done. Learned advocate for the
petitioner relies on a decision of the co-ordinate Bench of this Court in
the case of "Umbar Marketing Pvt. Ltd. vs. Commissioner of Customs
(Port)" reported in 2016 (338) E.L.T. 362 (Cal.).
Learned advocate appearing for the respondent Customs
Authorities defends that the impugned action of the Customs
Authorities by taking the plea that the impugned order of the
Appellate Authority is appealable and the time is still available and
has not expired for filing further appeal before the Tribunal against
the aforesaid order of the Commissioner of Customs (Appeals) dated
11th August, 2021. Learned advocate appearing for the respondent
Customs Authorities also submits that the order of this Court in the
case of Umbar Marketing Pvt. Ltd. (supra) is not applicable to the facts
of this case and contends that in that case both the parties were
agreed for re-testing. I fail to understand that why the department will
take different stand for different parties. Furthermore, Mr. Mehta
submits that judgment passed in Umber Marketing Pvt. Ltd. (supra)
has been accepted by the respondent Customs Authorities and they
have not further challenged the same.
Considering the submissions of the parties and respectfully
following the decision of the co-ordinate Bench of this Court in the
case of Umber Marketing Pvt. Ltd. (supra) as well as in view of the
order of the Appellate Authority dated 11th August, 2021 part of which
has already been complied with by the subordinate authority and yet
taking the stand that the respondent Customs Authorities will not
comply the same since it wants to challenge the same before the
Tribunal, is not sustainable in law.
This writ petition being WPO 874 of 2021 is disposed of by
directing the respondent concerned to allow the re-testing of the goods
in question within a week from date at the expense of the writ
petitioner and in the event if the test report goes against the
petitioner, the amount deposited by the petitioner for re-testing will be
forfeited.
This Court has not gone into the merits of any other claim made
by the petitioner in this writ petition and he is free to initiate
appropriate proceeding before the appropriate forum in this regard.
WPO 874 of 2021 is disposed of accordingly.
(MD. NIZAMUDDIN, J.)
TR/
