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Board of Trustees of the Port of Bombay Vs. Kanudia Enterprises - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 352 of 1984
Judge
Reported in1989(23)LC114(Bombay); 1989(43)ELT421(Bom)
Acts Central Excise Act
AppellantBoard of Trustees of the Port of Bombay
RespondentKanudia Enterprises
Excerpt:
excise - contempt notice - central excise act - court directed petitioners to release seized goods by honouring detention certificate by customs authorities - subsequently petitioner addressed letter questioning bona fide of detention certificate issued by customs collectors in pursuance to court order - contempt notice issued for said action challenged - petitioner prima facie proved to have interfered in court's order by writing letter without honouring detention certificate - contents of letter to be discussed in proceedings before court - held, contempt notice justified. - - 12. as regards the 2nd part of the order, in our view under the circumstances the same was as well justified......1984, whereunder he has issued a contempt notice to one k. nalinakshan, general manager, bombay port trust, making it returnable on 9th april 1984, to show cause why action should not be taken for flouting the orders of this court by writing letter exh. 'a' and 'b' copies of which were attached to affidavit of p. k. abrahim dated 22nd march 1984. the learned judge further directed respondent no. 4 - board of trustees of the port of bombay, to clear the consignment forthwith in view of the detention certificates issued by the collector.2. the order came to be passed under the following circumstances :-one m/s. kanudia enterprises - the first respondent in this appeal have filed a writ petition seeking writ against union of india, collector of customs, assistant collector of customs as.....
Judgment:

Rege, J.

1. This is an appeal against the order of Pendse, J., dated 27th March 1984, whereunder he has issued a contempt notice to one K. Nalinakshan, General Manager, Bombay Port Trust, making it returnable on 9th April 1984, to show cause why action should not be taken for flouting the orders of this Court by writing letter Exh. 'A' and 'B' copies of which were attached to affidavit of P. K. Abrahim dated 22nd March 1984. The learned Judge further directed Respondent No. 4 - Board of Trustees of the Port of Bombay, to clear the consignment forthwith in view of the detention certificates issued by the Collector.

2. The order came to be passed under the following circumstances :-

One M/s. Kanudia Enterprises - the First Respondent in this appeal have filed a Writ Petition seeking Writ against Union of India, Collector of Customs, Assistant Collector of Customs as Respondents 1 to 3 respectively directing them to release three consignments of the Petitioners on payment of 65% of customs duty and executing a bank guarantee for the balance and to issue detention certificates in respect of the said three consignments for the period of 19th/20th January 1984 till clearance of the said consignments. The Petitioners also sought a Writ against the Board of Trustees of Port of Bombay - Respondent No. 4 - to forbear from imposing demurrage charges and to further allow the Petitioners to take delivery of the said consignments, by honouring the detention certificates granted by the Customs Department.

3. Initially the matter was dealt with by Desai, J., who disallowed the objection of the Board against being made a party and under his order dated 20th February 1984 while admitting the Petition made the interim order in the following terms :

'Pending the hearing and final disposal of the petition, the Respondents Nos. 1 to 3 shall allow the Petitioner to clear the consignments in this petition upon payment of customs duty at 65% item No. 28.02/04 on the brass gross and on payment of basic customs, auxiliary and additional duties on the brass scrap in the said consignments. The petitioners shall also furnish a bank guarantee to the Collector of Customs to the extent of 50% of the C.I.F. value of the brass scrap in the said consignments. The 1st, 2nd, 3rd respondents shall also issue detention certificates to the petitioners under proviso (a) to clause (c) of Section 111 of Docks Scale of Rules applicable to Bombay Port in respect of each of the consignments herein covering the period after the expiry of the seven free days till the date of the order for the clearance of the consignment herein. Detention certificate to state that the consignments herein have been detained for special examination involving analytical and technical test other than the ordinary process of appraisement and not attributable to any fault negligence of petitioners. The consignments will be released on the petitioners making payment of the duty and on furnishing the bank guarantee as provided above.'

4. As the order shows the Port Trust had appeared and were represented by a Counsel and attorneys at the time of passing of the said order.

5. In pursuance of the said order of the Court, Customs authorities issued in favour of the petitioners requisite detention certificates in the manner stated in the said order.

6. However the Port Trust instead of honouring the detention certificates issued by Customs when presented by the petitioners, the General Manager of the Port Trust one K. Nalinakashan, came to address two letters being dated 8th March 1984 and 15th March 1984 respectively to the Collector of Customs which has resulted in issuing of notice for contempt against him. The letter dated 8th March 1984, inter alia, stated as under :-

'In the circumstances, I have to request you to advise us on the non-certification by endorsement on the relative duplicate copies of B/E in the case of the three consignments in question. You are also requested to advise as to what is the real and bona fide period of detention involving analytical and technical tests other than the ordinary process of appraisement in the cases covered by the three Detention Certificates.'

7. The next letter dated 15th March 1984 which was in the same vain stated inter alia :

'I, therefore, once again request you to kindly enlighten us whether the goods were in fact detained for special examination involving analytical and technical tests and for bona fide Import Trade Control formalities together with the specific period of such detention in respect of all the three consignments separately. To put it conversely, you are requested to advise whether the Customs authorities would have issued the three detention certificates had there been no Writ Petition by M/s. Kanudia Enterprises being Writ Petition No. 352 of 1984.

8. In reply the Collector of Customs by his letter dated 16th March 1984 to the Port Trust stated that they had issued detention certificates under the orders of the Court and they would not have been issued had there been no court directions. However at the hearing the Customs withdraw the said letter and wrote another letter dated 26th March 1984 deleting the said later part of the letter dated 16th March 1984.

9. The petitioners therefore brought the matter before this Court for grant of interim relief of immediate release of the said consignments. Pendse, J., who heard the said application whereat all parties including Port Trust were present and represented by Counsel passed the impugned order issuing Notice for contempt against the writer of the letter the said K. Nalinakshan, being returnable on 9th April 1984 and also directing the release of the consignments forthwith.

10. Firstly at present the proceedings being only at the stage of notice, made returnable on 9th April 1984, there was no justification for interfering with the said order at this stage. The said K. Nalinakshan would be entitled to advance all the argument on merits in support of his said letters which his learned Counsel sought to advance before us to day.

11. Secondly even otherwise looking to the tenor of the said letters which disclose an attitude on the part of the General Manager, Port Trust, the said Nalinakshan not to carry out the orders of the Court, of which he was aware, by honouring the detention certificates issued by the Customs but question the bona fide of the Customs in issuing the same on the face of the Court's order, on the assumed right that under the rules he was entitled do so, the Court was, in our view, justified in issuing a contempt notice against the writer.

12. As regards the 2nd part of the order, in our view under the circumstances the same was as well justified. The interim order of the Court quoted above required the Customs to issue detention certificates in the manner stated therein which the Customs did. Reading of clause (c) of Section 3A imports in force of the Docks Scale of Rates quoted by the General Manager, Port Trust in his letter dated 8th March 1984 would prima facie require the Port Trust on issue of such certificate by the Customs to release the consignment without charging demmurage. In fact the interim order of this Court directed such release. However, the Port Trust instead of releasing the consignments, under its General Manager's said two letters which prima facie justified issue of contempt notice, refused to release the same in spite of Court's order, under an assumed right that under the rules they were entitled to enquire into the bona fide of the Customs in issuing such detention certificates. Under the circumstances the said interim order need no interference. The appeal is therefore dismissed at the admission stage itself.

13. Application by the learned Counsel for the Port Trust to stay the operation of the order for seven days rejected.

14. Oral application for leave to appeal to the Supreme Court rejected.

15. Shri Mehta, learned Counsel for the Port Trust applies for leave to file in court a copy of the letter written by the Collector of Customs to the Port Trust dated 26th March 1984. He is allowed to do so.


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