TMI Blog2018 (1) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 28th August 2015 is restored to the file of the Customs, Excise and Serviced Tax Appellate Tribunal, West Zonal Bench, Mumbai - appeal allowed in part. - CUSTOMS APPEAL NO. 86 OF 2016 - - - Dated:- 8-12-2017 - A.S. OKA AND A.K. MENON, JJ. Mr.Hormaz Daruwalla with Mr.S.A.K.Najam EsSani i/b. Maneksha and Sethna for the appellant. Mr.Pradeep S. Jetly for the respondent. ORAL JUDGMENT: (Per A.S.Oka, J.) This appeal was admitted by order dated 28th August 2017 by framing following substantial question of law: Whether the Customs, Excise and Service Tax Appellate Tribunal has no more jurisdiction to entertain an Application for stay of the order impugned before it? The appeal was ordered to be disposed of at the admission stage. Accordingly, the appeal was taken up yesterday for final hearing. 2. A reference to few factual aspects would be necessary. On 5th June 2015, an order-in-original was passed by the Commissioner of Customs confirming the demand of the differential duty. Under the said order, penalty was imposed on the petitioner. In this petition, we are concerned with the direction issued under clause (vii) of paragraph47 of the order- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eps to recover the balance amount of duty and penalty subject matter of challenge in an appeal till the disposal of the appeal. He submitted that in view of compliance of the statutory requirement of deposit made by the petitioner, till the disposal of the appeal, the department cannot take any further steps on the basis of the order of confiscation. He submitted that there is an option given in the order-in-original to the petitioner to redeem the goods on payment of redemption fine and, therefore, there is no question of anybody recovering the redemption fine during the pendency of the appeal. He submitted that thus, after making compliance with the requirement of statutory deposit under section 129E of the Customs Act, there is no occasion for the Tribunal to entertain any application for interim relief. It is submitted that in the absence of any express provision either in the Act or the Procedure Rules, there is no inherent power vested in the Appellate Tribunal to grant interim relief. 5. We have given careful consideration to the submission. In the present case, under the order-in-original, duty and penalty were made payable by the petitioner. 7.5% of the total duty and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods without payment of redemption fine. The question is whether the Appellate Tribunal has jurisdiction to entertain such an application. Our attention was invited to the decision in the case of Mr.Venugopal Engineering Ltd. v. Union of India Customs Appeal No.6/2013 decided on 10th June 2014, and, in particular what is held in paragraph 13, which reads thus: 13. The appellant has also made a grievance of the Tribunal refusing to reconsider the appellant's application for stay of the redemption fine of ₹ 78 lakhs. We find that the Tribunal in its order dated 19 August 2011 has held that in terms of Section 129E of the Act, there is no requirement to pre-deposit the redemption fine for the purpose of hearing the appellant's appeal on merits. We find that no exception could be taken to the above view of the Tribunal. The stay on redemption fine would normally follow from a stay of the order being challenged before the Tribunal. The jurisdiction of the Tribunal to stay the order being appealed against before it is not under Section 129E of the Act but is in the exercise of its inherent power as an Appellate Authority. This power is to be exercised in exceptiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been conferred on the Income-Tax Officer to grant stay during the pendency of the appeal. After considering the relevant provisions, Maxwell on Interpretation of Statutes and other material, the Apex Court held thus: It is well known that an Income-tax Appellate Tribunal is not a court but it exercises judicial powers. The Tribunal's powers in dealing with appeals are of the widest amplitude and have in some cases been held similar to and identical with the powers of an appellate court under the Civil Procedure Code : See Commissioner of Income tax, Bombay City v. Hazarimal Nagji Co. ([1962] 46 I.T.R. 1168,) and New India Assurance Co. Ltd. v. Commissioner of Income tax, Excess Profits Tax ([1957] 31 I.T.R. 844,). In Polini v. Gray ([1879] 12 Ch.D 438.), this is what Jessel M.R. said about the powers of the Court of Appeal to grant stay at page 443: It appears to me on principle that the Court ought to possess that jurisdiction, because the principle which underlies all orders for the preservation of property pending litigation is this, that the successful party in the litigation, and not obtain merely a barren success. That principle, as it appears t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y words, the Apex Court held that the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. It was further held that when section 254 confers appellate jurisdiction on the Appellate Tribunal, it impliedly grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. It was held that this statutory power carried with it the duty, in proper cases, to make such orders for staying proceeding as will prevent the appeal, if successful from being rendered nugatory. The Apex Court put a caveat by observing that the power to grant interim relief cannot be exercised by the Tribunal in a routine manner considering the special nature of taxation and revenue laws. It is observed that only when a strong prima facie case is made out that such power can be exercised. 9. The learned counsel for the petitioner has relied upon Rule 41 of the Procedural Rules. Rule 41 reads thus: 41. Orders and directions in certain cases. The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edemption of confiscated goods subject to deposit of a part of redemption fine and subject to furnishing of security, bank guarantee etc. for the balance amount. It all depends upon the facts and circumstances of the individual case. Needless to add that where the Tribunal is dealing with such an application for grant of interim relief, the power to grant interim relief cannot be exercised in a routine manner or as a matter of course as the Tribunal is dealing with taxation and revenue laws and as public exchequer is involved. It is obvious that only when a strong prima facie case is made out that the Tribunal can grant appropriate interim relief. The Tribunal can always impose conditions for balancing the interests of the revenue and the assessee and for ensuring that that the amount of demand is secured in some form. 13. Therefore, in our considered view, the opinion expressed by the Appellate Tribunal in the impugned order is not correct. There is power vested in the Appellate Tribunal to grant interim relief subject to constraints which we have observed above. 14. As the Appellate Tribunal has not dealt with the merits of the case made out in the miscellaneous applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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