DEBANGSU BASAK,J. - (1.) The Court : The Court: The petitioner seeks delivery of 5058.9 kgs of nickel-silver scrap from the authorities.
(2.) The learned Advocate for the petitioner submits that the authorities had seized three consignments of nickel-silver scrap belonging to the petitioner. A proceeding for confiscation was initiated which traveled upto the Supreme Court of India. At all stages the proceedings were decided in favour of the petitioners. The confiscation was held to be bad. The authorities were directed to return the seized materials. He submits that, at the time of seizure, 298 lumps of the materials were seized and six samples out of the three consignments were taken for the purpose of testing. He refers to the order-in-original of the Customs Authorities and submits that the adjudicating authority had relied upon the test report submitted on behalf of the authorities. The report speaks of the materials to be nickel-silver scrap. Thereafter, on the basis of the order of the Hon'ble Supreme Court of India directing the release of the materials to the petitioner, the petitioner had approached the authorities for the purpose of taking delivery. At the point of taking delivery, the petitioner was surprised to learn that the petitioner was being offered metal scrap rather than nickel-silver scrap. The petitioner did not take delivery after protesting about the same. The petitioner seeks the materials as confisticated or the value thereof.
(3.) The learned advocate for the department submits that there are disputed questions of fact involved in this case. The department had taken custody of the materials covered under three consignments considering 298 lumps. The department had also undertaken a test of six samples out of the 298 lumps. The entirety of the lumps were not tested. The six samples had been produced results as noted in the order- in-original. He submits that, the materials seized were stored at a godown which was kept under lock and key and was sealed. The lock and the seal were not tampered with. There was no possibility of the godown being accessed without any notice by any unauthorised person. In fact, the godown was not accessed at all apart from the time to make over possession of the materials to the petitioner. As to the disputed questions of facts with regard to the quality of the materials being involved, he submits that, it would be proper for the petitioner to file an appropriate proceedings for the purpose of realisation of its claim, if any. He further submits that there are 51 lumps of nickel-silver scrap available for the purpose of delivery to the petitioner. The balance is metal scrap. The Court should hold that the three consignments of the petitioner consisted of 51 lumps of nickel-silver scrap and the balance as metal scrap.;