2009 (11) TMI 526 - HC - Customs

Stay of the order - findings of all the fora below that material are obscene, at this stage it will be very risky to allow the stay of operation - stay is granted the department will be compelled to release the material and in that case it would have serious repercussion in the event later on it is found that the appeal is not sustainable - Held that - if appeal succeeds the appellant does not stand to suffer as the materials may be released and utilised for which the same are imported - allegations contained in the petition are not admitted by the department - respondent waives the Notice of Appeal

Summary

Issues:
1. Consideration of evidence by the authorities in confiscating goods.
2. Legality of evidence adduced before the authorities.

Analysis:
1. The High Court considered two main points in the appeal. Firstly, whether the Additional Commissioner of Customs, the Appellate Authority, and the Tribunal were justified in not considering the evidence presented before them in the confiscation of the goods belonging to the appellant. The Court noted the almost unanimous findings of all the lower authorities that the materials in question were obscene. The Court decided not to grant a stay on the operation of the impugned order, emphasizing the risk involved in releasing the materials prematurely. The Court highlighted the importance of preserving the materials in custody and rejected the prayer for a stay order to avoid potential repercussions if the appeal was found to be unsustainable later on.

2. The second point of consideration was whether the evidence presented before the lower authorities constituted legal evidence for deciding the issue. The department's representative did not file an affidavit-in-opposition, expressing a desire to dispose of the application for interim relief finally based on the Court's order. The Court accepted this suggestion and disposed of the application accordingly. It was noted that the department did not admit the allegations contained in the petition due to the absence of an affidavit-in-opposition. The Court directed the issuance of necessary notices and waived the Notice of Appeal upon the respondent's counsel's request. The parties were instructed to act based on a signed copy of the order.

This judgment from the Calcutta High Court addressed the issues of evidence consideration and legality in the confiscation of goods, emphasizing the need to preserve materials, the risk of premature release, and the procedural aspects related to the presentation of evidence and affidavits in court proceedings.