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Judgment
The Court : This appeal will be heard out on two points formulated hereinbelow:
(1) Whether the Additional Commissioner of Customs, the Appellate Authority and Learned Tribunal were justified under the law in not taking into consideration of the evidence adduced before the aforesaid fora in confiscating the goods of the Appellant?
(2) Whether the evidence adduced before those fora are legal evidence for deciding the issue or not?
Since the appeal has been admitted and having regard to the facts and circumstances of the case particularly when we find almost concurrent findings of all the fora below that materials in question are obscene, at this stage it will be very risky to allow the stay of operation of the order impugned and hence we reject this prayer but the materials in custody of the department shall be kept and preserved properly and this must not be divulged or parted with to anyone else. We are of the view that balance of convenience will also not permit to pass any order of stay as prayed for. In the event stay is granted the department will be compelled to release the material and in that case it would have serious repercussion in the event later on it is found that the appeal is not sustainable and order of all the fora are justified. On the other hand, if the appeal succeeds the Appellant does not stand to suffer as the materials may be released and utilised for which the same are imported.
Mr. Hazra, appearing for the department submits that in view of this order he does not want to file any affidavit-in-opposition and he suggests that this application for interim relief should be disposed of finally. Accordingly, we accept his suggestion and dispose of this application finally in terms of this order.
However, we record that the allegations contained in the petition are not admitted by the department since no affidavit-in-opposition has been called upon to be filed.
Let the necessary notice be issued upon putting in requisites, if any. Mr. Hazra, learned Counsel for the Respondent waives the Notice of Appeal. Let the requisite number of paper books be filed on or before the following day of reopening of Christmas Vacation.
All parties are to act on a xerox signed copy of this order on the usual undertakings.