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TMI Blog1994 (9) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor of Customs, Calcutta. This was done also in October, 1993. The payment of provisional duty was accepted by the Customs Authorities. But the goods were not released by the Customs. 3.Being aggrieved by the refusal of the Customs Authorities to release the goods the writ petitioner moved a writ application under Article 226 challenging the refusal to clear the goods. An interim order was passed on 23-11-1993 by A.N. Ray, J. directing release of the goods. 4.The Learned Judge also recorded the undertaking on behalf of the writ petitioners to pay any differential duty in case same appears to be payable at the final hearing. The goods were also directed to be released within a week. 5.The respondents did not release the goods. An application for contempt was moved by the writ petitioner before A.N. Ray, J. A Rule was issued against the respondents. The respondents then preferred this appeal from the order dated 23rd November, 1993 immediately thereafter. An interim order was granted staying the operation of the order appealed from. The interim order is still continuing. 6.In the meantime a show cause notice was issued by the Customs Authorities under Section 124 of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een executed under the provisions of the Customs (Provisional Duty Assessment) Regulations, 1963 and (iii) it is also not in dispute that there has been no final assessment under Section 17 of the Act till today. 10.The right of the Customs Authorities to refuse clearance under Section 47 is no doubt discretionary but the discretion is statutorily regulated. The relevant sub-section of Section 47 reads :- Where the proper officer is satisfied that any goods"(1) entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption." 11.Implicit in this sub-section is the necessity for the proper officer to be satisfied as to the identity of the goods that it corresponds to the description given. There is no dispute that this is so in this case. 12.It has also not been and indeed it could not be argued that the goods are prohibited goods. Prohibited goods have been defined in Section 2(33) of the Act in the following terms :- `prohibited goods' means any goods the import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did. 18.The writ petitioners being agreeable to furnish a bond to the extent of the excess duty claimed in the Show Cause Notice, the appeal is disposed of by affirming the order under appeal and directing the release of the goods subject to the undertaking given in the court below and subject to the execution of a bond in the sum alleged to be due on account of excess duty in the show cause notice. The clearance must be allowed within a week from the date of execution of such bond. There will be no order as to costs. 19.[Judgmnt per : Mukul Gopal Mukherji, J.]. - I agree with the line of reasoning given by Ruma Pal, J. in the judgment but I cannot persuade my judicial conscience to agree with the ultimate direction regarding release of the goods "subject to the undertaking given in the court below and subject to execution of a bond" for the sum alleged to be due on account of the excess duty in the show cause notice. It would also perhaps not be proper to direct a clearance within a week from the date of execution of such bond in the manner suggested by Ruma Pal, J. 20.The Supreme Court in Assistant Collector of Central Excise, Chandannagar, West Bengal v. Dunlop India Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d strong discouragement. 21.In State of West Bengal Ors. v. Calcutta Hardware Stores and Ors. reported in 1986 (2) SCC 203 it was observed by the Supreme Court that an ad interim order should be used with circumspection having regard to the larger public interest and should not be issued on the mere asking of the parties. The Judges have a constructive role and therefore there is always the need to use such extensive powers with due circumspection. There has to be in the larger public interest an element of self-ordained restraint. In the facts of the said case a Division Bench of the High Court set aside an interlocutory order and passed an ad interim order directing release of the seized goods without affording an opportunity to the State Government to file an affidavit-in-opposition to the writ petitioner observing inter alia that the confiscation notice was issued without any basis. The release of the goods [was] subject to the furnishing of bank guarantee of Rs. 5 lacs in the form of fixed deposit receipts and also on furnishing security of immovable property being .71 acres of land. The legality and propriety of the ad interim order of the Division Bench of the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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