ANOOP KUMAR Vs. COMMISSIONER OF CUS. (PREV.)

JUDGEMENT

(1.) Facts :

(2.) CERTAIN goods were imported under a special import licence. These are described as walkie -talkie toys. The customs authority had refused to release the goods on the ground that those are not the goods, which were permitted to be imported under the Special Import Licence for importing electronic toys. A proceeding was initiated against the petitioner and the goods were confiscated under Section 111(d) of the Customs Act and then it was directed to be redeemed on payment of a fine of Rs. 3,00,000/ - and also a penalty of Rs. 50,000/ - by an order dated 9th August, 1996 issued on 10th October, 1996. An appeal was preferred under Section 129A of the Customs Act. The said appeal was decided in favour of the petitioner allowing the appeal and setting aside the order of confiscation together with consequential relief. A reference under Section 130(1) of the Customs Act was sought to be made by the department through the Tribunal. But the Tribunal refused to state this case under Sub -section (3) of Section 130 of the Act. Thereupon, the department has sought for a reference before this Court under Section 130(3) of the Customs Act. This Court admitted the reference, and the same is pending. The petitioner applied for release of the goods but the customs authority declined on the ground of the pendency of the reference. At this stage the petitioner has prayed for the release of the goods in view of the order passed by the Tribunal in appeal.

(3.) MR . Debal Banerjee, learned Counsel for the customs authority, on the other hand, points out that this writ petition cannot be maintained in view of Rule 41 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982 and points out that the petitioner should have approached the Tribunal (CEGAT) itself for the implementation of its order. This Court cannot act as an executing agency of CEGAT. Rule 41 provides identical alternative remedy under which the petitioner can apply. Even if it is contended that it has no power to issue contempt, still then the petitioner could have come to this Court after exhausting the remedy under Rule 41. He could not have come before it straightway without exhausting the alternative remedy.