9911796707
TMI Blog1983 (12) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 13 lakhs or any other amount. This application came up for consideration before this Bench to which one of us [Hegde, Member (J)] was a party. The Respondent Collector of Customs, Bombay, was represented by Shri Krishan Kumar, the Junior Departmental Representative. In the stay application, Shri V.D. Govilkar, the learned Advocate for the applicants submitted that prima facie the order passed by the Additional Collector was illegal and opposed to the law laid down by the Supreme Court in a case reported in AIR 1971 Supr- eme Court 705, and as such he contended that the direction in the order of the learned Additional Collector requiring the applicants herein to pay fine of ₹ 13 lakhs for the release of the goods would certainly cause great hardship, and that the applicants are prepared to offer a bank guarantee for the entire sum. 4. Shri Krishan Kumar, JDR, however, contended that the Tribunal has no jurisdiction to stay the redemption fine. In support of this contention Shri Krishan Kumar relied upon the provisions of Section 129-E of the Customs Act. Shri Krishan Kumar further contended that immediately after the order passed by the learned Additional Collector, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee and release goods. It is then stated in the application that in order to clarify the position the applicants through their Advocate Mr. H.R. Gill addressed the said Assistant Collector of Customs a letter bearing No. ND/83-84/CEGAT/AC/B, dated 9-11-1983 clarifying the scope and import of the stay order. Along with the letter a copy of the stay application was also sent. It is further stated that the letter above referred to was sent through their representative Mr. Ashok Kumar Gupta who personally met the Assistant Collector of Customs, Miss M. Michael around 3 p.m. on 9-11-1983. What transpired during the meeting was referred to by Shri Ashok Kurnar Gupta in the affidavit which is annexed to the application and marked Exh. A . Shri Gupta had stated in his affidavit that the Assistant Collector of Customs directed him to hand over the letter to her clerk which he accordingly did under proper acknowledgement. Thereafter, he requested the Assistant Collector of Customs to kindly order release of the consignment in accordance with the Tribunal s order dated 30-9-1983 and 7-11-1983. Shri Gupta has further stated in his affidavit that he also explained to the Assistant Collector as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the Tribunal. The applicants prayed for an order directing the Assistant Collector of Customs, B Group to deliver the consignment within 24 hour, and to grant such reliefs as the Tribunal may deem fit. 7. The above application was presented on 24-11-1983 and on that day the Bench directed the Respondent Collector to file objections, if any, and grant time till 25-11-1983 to hear the application. On that day Shri Jain for the Respondent Collector represented fiat the allegations contained in the affidavit of Shri Gupta are not true and he would file a counter-affidavit. We, therefore, granted two days time to file a counter-affidavit and listed the application for hearing on 28-11-1983. On that day the affidavit of the Assistant Collector of Customs, Miss Michael, was filed. She has stated on oath that the averment contained in the application about deliberate contempt committed by her is totally false and misconceived and as an officer of the Respondent she is always bound to carry out the orders of the Hon. Tribunal. Bui it is her duty to point out to the Hon. Tribunal that the appellants have deliberately concealed relevant facts of which they were fully aware-not only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it by the appellants namely the dispute regarding this contravention is concerned the issue is closed for the time being in view of the said order dated 30-9-1983. However, I seek the direction of the Hon ble Tribunal in view of the fact that while the appellants have approached me for the release of the said goods on the strength of the aforesaid stay order, at the same time I am restrained from permitting such release, in view of the relevant statutory provisions, by virtue of the cancellation/withdrawal by the Assistant Drug Controller, and the reasons for which the said cancellation/withdrawal had been intimated by him appears not to have been brought to the notice of the Hon ble Tribunal. It is in these circumstances that I refused to release when the appellants approached me with the Bank guarantee on 7-11-1983 pursuant to the order dated 30-9-1983, I crave leave of the Hon ble Tribunal to permit me to refer to and rely upon the relevant correspondence/notings exchanged between my department and the Assistant Drug Controller s office in connection with the aforesaid issue. With regard to the statement made in the affidavit of Shri Gupta, Miss Michael stated in her affida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to and/or inconsistent with all I have stated herein above as if the same were specifically set out herein traversed. 8. During the hearing of the application, Shri V.D. Govilkar, the learned Advocate for the applicants, brought to our pointed notice that as early as on 4-8-1983 the Additional Collector of Customs, Bombay gave an option to the applicants to clear the goods on payment of fine of ₹ 13.00 lakhs. This order remains unaltered excepting to the extent of mode of payment. Instead of cash payment this Bench by its order allowed bank guarantee. The counter-affidavit of Miss Michael, Assistant Collector discloses that the respondent Collector had received a letter dated 16-8-1983 from the Assistant Drug Controller withdrawing the permission earlier given for the release of the goods. If that was the ground for not releasing the goods the respondent Collector ought to have urged that ground when the stay application came up for consideration. The very fact, that the respondent Collector did not raise any such contention clearly indicated that letter could not have been the cause for not accepting the bank guarantee, and releasing the goods. Shri Govilkar, further, po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleaded as a defence. (4) Whether the disobedience if any is wanton and deliberate. (5) To what action if any is the respondent Collector liable. Before proceeding to answer the points referred to above it is necessary to set out that it had been made clear to us that according to the distribution of work in the Custom House, the Assistant Collector, B Group has been assigned the duty of disposal of matters of the nature under consideration. Answer to point No. 1. - Detailed discussion is not required to answer this point. With impunity, but eloquently the Assistant Collector, Miss Michael, in her affidavit had furnished the answer. The order for release of the goods was made on 30-9-1983. The applicants herein furnished the required bank guarantee on 31-10-1983. That was not accepted by the Assistant Collector as it was furnished beyond the stipulated period. The applicants after obtaining the order for extension of time till 7-11-1983 approached the Assistant Collector for release of the goods. She neither accepted the bank guarantee, nor released the goods, nor did she pass any orders in writing assigning reasons for not accepting the bank guarantee and releasing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that whatever be the merit of the order of the Court or Tribunal the party to the order is bound by the order and is required to obey the order and cannot refuse to obey the same unless the order is either modified or set aside by a superior authority or by the same authority either at the instance of the party against whom the said order operates or at the instance of any other party. It is necessary to point out that our order dated 30-9-1983 substituting the bank guarantee for cash payment was passed after giving an opportunity to the respondent Collector. The Respondent Collector did not choose to bring to our notice the letter of the Assistant Drug Controller dated 16-9-1983. Even after the order dated 30-9-1983 neither the respondent Collector nor the Assistant Collector made any application for modification or annulling the order passed by us. According to the applicants a bank guarantee was furnished on 31-10-1983 and they again approached the Assistant Collector on 7-11-1983. Even at this stage the Assistant Collector did not think it fit to bring to the notice of the Bench of the letter she had received from the Assistant Drug Controller. In her counter-affidavit she ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to approach the Tribunal for necessary modifications of the order. She does not do this. She takes law into her own hands and refuses to release the goods. Coming to the power of the Assistant Drug Controller we were not shown any provisions in the Drugs Act or any other law which authorised the Assistant Drug Controller to issue the direction to the Customs Authority to permit or not to permit the release of a consignment of a drug. In her counter-affidavit Miss Michael had stated that the applicants herein have made a declaration before the Assistant Drug Controller that they had already sold the consignment on the basis of high seas sale to Mercury Laboratories which declaration was subsequently found to be false. Here again it is not clear how the Assistant Drug Controller could order the release if high seas sales have taken place even though the importers have not complied with the requirements of law. We were not shown any provisions empowering the Assistant Drug Controller to direct release of a drug consignment on the basis of high seas sales. The only power conferred on the Assistant Controller (if he was authorised by the Central Government) to request the Customs Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e knowledge of the Bench and to have prayed for a modification or cancellation of the order. The Assistant Collector, Miss Michael in this case ought not to have taken upon herself the grave responsibility of flouting the order on a mere letter of the Assistant Drug Controller. As a person of ordinary prudence she should have exercised greater care and circumspection in dealing with the matter like this. The Assistant Collector occupies a pivotal position in the customs set up. The Acts and the rules confer vast powers on the Assistant Collector. More power means more responsibility. Unfortunately Miss Michael acted in an irresponsible manner and abused her power. This is a very disturbing trend and the same is required to be curbed in the interest of public. Answer to point No. 4. - Now this question shall have to be considered from the facts and circumstances established in this case. The Additional Collector in his order dated 4-8-1983 directed release of the goods on payment of fine. Neither the respondent Collector nor the Assistant Collector who was to carry out that order took any exception to the release of the goods on payment of fine on the ground of it being violative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck of experience and non-realisation of the consequences of disobedience could have been the reason rather than arrogance or power drunkenness. Taking all aspects into consideration, instead of initiating contempt proceedings we direct her to comply with our order within 2 days from the communication of this order and report compliance immediately thereafter. 11. Before parting with this case we would like to observe that India is a Sovereign Democratic Republic. In our Constitution the rule of law is supreme. The rule of law only means that all are equal before the law, and all are required to obey the law. No person or an authority howsoever high can refuse to obey the law. Be you ever so high the law is above you . When sanctity is attached to established Courts and Tribunals it follows as a corollary that all orders emanating from these Public Institutions should be respected and strictly complied with. The order must be implicitly observed, every diligence must be exercised to obey. The welfare of the people is the supreme law. The welfare of the people can be attained only when there is justice administered lawfully, judicially without fear or favour and those that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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