Baboo Lall Jain, J. - (1.) Before making this writ application the petitioner had moved another writ application being Matter No. 4403 of 1987 (Sushil Kumar Kayan v. Assistant Collector of Customs and Ors.). In the said application an interim order was made by this Court, being order dated the 18th June, 1987. The said order is, inter alia, to the effect as follows :- "The customs authorities are directed to release the goods upon the petitioner's paying the admitted amount to duties in cash and upon the petitioner's furnishing a Bank Guarantee for 50% of the disputed amount of duties assessed in excess of the amount admitted by the petitioner, and a bond for the other 50%. Such Bank Guarantee and such bond shall be furnished by the petitioner to the satisfaction of the Collector of Customs, the respondent No. 2 herein. Such Bank Guarantee and such bond shall be initially for a period of three months from date, on the undertaking of the petitioner to renew and keep it alive so long as the writ petition remains pending. The respondents are directed to produce receipt on 25.6.1987. The respondents will be at liberty to variation and/or vacation of the interim order upon notice to the petitioner. All parties to act on a signed copy of the minutes of this order on the usual undertaking."
(2.) Since long prior to the making of the aforesaid order, the aforesaid goods were lying and were kept in the bonded warehouse, pursuant to the request of the petitioner made some time in September, 1985. From the said bonded warehouse the petitioner could only obtain delivery of the goods on payment of customs duty and consignment release of the goods by the customs authorities even after the said order dated 18th June, 1987, was passed, the petitioner did not pay even the admitted amount of duty in cash as directed by the said order. In paragraph 10 of the petition the petitioner has alleged as follows :- "On 30th January, 1986 your petitioner came to known that in respect of the said goods an order of seizure has been passed by the respondent No. 1 Under Section 110 of the Customs Act, 1962. The said order was recorded on the register of the Warehouse where the said goods are stored." 3. In the affidavit in opposition affirmed by Pranab Kumar Das on the 13th May, 1985 it has been stated, inter alia as follows: "On perusal of the records of the Customs House it is found that no notice Under Section 110 of the Customs Act, 1962 was ever served in respect of the subject goods but only in the Bond stock register Book No. 1. It has been endorsed by the Appraiser S.I.B.'s on not to be delivered without the knowledge of the S.I.B.'s on 30th January, 1986. Long after that the Bill of Entry was assessed and the question of seizure or not giving delivery does not arise. Further, before payment of duty no release order is ever given from the Bond in the case of even normal goods stored in the bonded warehouse. In the case of the goods stored in the bonded warehouse the importers pay duty on the assessed Bill of Entry and take release order from the Customs Appraiser concerned. In this case the Bill of Entry has been assessed long before and delivered to the importer on 9th July, 1987 in terms of the order of the Hon'ble Court dated 18th June, 1987 for payment of duty. The importer have not paid duty before presentation of instant writ application."
(3.) The respondents are denying that there was any order Under Section 110 of the Customs Act, 1962. The endorsement on the bond stock register was recorded by the Appraiser attached to the Special Investigation Bench on 30.1.1986, to the effect 'not to be delivered without the knowledge of S.I.B.'. Thereafter, according to the respondents Nos. 1,2 & 3 the Bill of Entry was assessed in compliance of the order passed by this Court on 18.6.1987 and the reassessed Bill of Entry was made over on the 9th July, 1987, for taking release of the subject goods on payment of duties and execution of Bank Guarantee and Bond. In my opinion, after the order dated the 18th June, 1987 was passed by this Court it was for the petitioner to comply with requirements of the said order before asking the Customs Department for the delivery of the goods. The petitioner even till today has not paid the admitted amount of customs duty, and the petitioner without due compliance with all the requirements of the said order dated the 18th June, 1987 could not possible be entitled to demand delivery of the goods.;