Dilip Kumar Seth, J. - (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. Submission on behalf of the Petitioner: Learned Counsel for the petitioner submits that once the Tribunal has set aside the order of the customs authority, it is incumbent on the authority, as subordinate to the Tribunal, to carry out the said order. Any breach or default would amount to dereliction of duty and refusal to perform the duty cast upon it, as public officer. Therefore, the petitioner has prayed that the customs authority be directed to act in accordance with law and discharge its normal function. It is not in the form of an execution but a direction upon the authority to discharge its public duty. He further contends that there is no provision provided in the Customs Act or the Rules for execution of an order passed by the Tribunal. The Tribunal is also not clothed with the power of contempt of its own. In the circumstances, according to Mr. Talukdar, learned Counsel for the petitioner, there is no other alternative remedy but to approach this Court for securing release of the goods. He further contends that the mere pendency of a reference does not operate as stay. There is nothing, which can empower the customs authority to refuse to release the goods, simply because the reference is pending. He, however, contends that the jurisdiction of this Court in a reference does not clothe it with the power, while entertaining reference, to grant any stay. Similarly, no stay could be operative in the execution of the order of the Tribunal. He has also referred to a decision of this Court in Sardar Gurcharan Singh v. Collector of Customs Cal.), to support his contention, where in similar circumstances it was so held. He has also relied on a decision of the Supreme Court in Commissioner of Income Tax, Delhi & Others v. : [1986]157ITR665(SC) . He then contends that the provisions under the Customs Act for reference are identical with those provided in the Income Tax Act and, therefore, the principle enunciated therein, equally applies. Therefore, this Court should issue appropriate direction for release of the goods. Submission on behalf of the Respondents:
(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. 3.1 According to Mr. Banerjee, in the reference if it is held in favour of the Department then it would be difficult to get back the goods. He points out that the goods are prohibited; even if the same are not altogether prohibited, but the same are permitted to be imported on a special import licence and the goods do not conform to the licence or there is non -compliance of any condition of the licence under which those are imported or if there is no special import licence, the same equally becomes prohibited item. Therefore, it cannot be released in any way. He further contends that in the present case, the reference may take a longer time, but the goods cannot be released in view of the situation that the goods, which are liable to be confiscated, if released, the same cannot be recovered subsequently. Therefore, this writ petition should be dismissed. Reply on behalf of the Petitioner:;