GIRDHARI DUBEY Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE above miscellaneous application was filed by the appellant in Appeal No. C/262/2002 -Kol., seeking implementation of the Tribunal's order dated 27 -11 -2001 to return the gold confiscated from the applicant. When the application came up for hearing on 22 -4 -2003 it was adjourned to 1 -5 -2003 to enable the respondent to implement the final order. On 1 -5 -2003 when the case was taken up, the learned Senior Counsel Shri A.N. Haksar who was appearing on behalf of the respondent submitted that on 30 -4 -2003, a Special Leave Petition had been filed before the Supreme Court challenging the order passed by the Calcutta High Court on 16 -9 -2002 dismissing the reference application filed by the Revenue from the final order dated 27 -11 -2001. Since the learned Counsel submitted that steps are being taken to get the petition heard expeditiously, we adjourned the matter to 5 -8 -2003, granting respondent time till 21 -7 -2003 to the implement the final order. On 5 -8 -2003 the learned senior Counsel submitted that he was not getting instructions in the matter and sought permission to withdraw from the case. Permission was granted. Thereupon we directed the respondent -Commissioner of Customs (Preventive), West Bengal, Calcutta Custom House to be personally present before us on 11 -8 -2003. Since the Commissioner was not present on 11 -8 -2003, the matter was adjourned to 18 -8 -2003.

(2.) THE Commissioner submitted that the final order passed by the Tribunal was implemented and the gold has been released to the owner Shri Girdhari Dubey. A copy of the order was also produced. We directed the Commissioner dated 18 -8 -2003 to file a detailed affidavit explaining delay caused in implementing the final order also giving the particulars of the officers who were in charge during the relevant period. The case was adjourned to 28 -8 -2003. On that day, while examining the affidavit filed by the Commissioner, the contents were found totally indequate and inappropriate. During the proceeding it came out that when we gave time till 21 -7 -2003 to implement the order dated 27 -11 -2001, the Special Leave Petition filed before the Supreme Court had already been dismissed on 30 -6 -2003 which was not brought to our notice. We directed the Commissioner to file a better affidavit making proper averments. Thereafter, she filed a detailed affidavit dated 19th Sept., 2003.

(3.) THE above affidavit was considered by us on 16 -10 -2003. We heard Shri M. Chandrasekharan who was assisting the Tribunal as amicus curiae in these proceedings. He submitted that on going through the averments in the affidavit of the Commissioner, it could be seen that the delay was caused due to lack of coordination between the different authorities. It may be true that there was lack of vigilance on the part of the officers including the respondent to implement the order, but he points out that the facts which have come out, would not show that there was any contumacious conduct on the part of the respondent which would justify contempt proceedings being initiated against her.