9911796707
TMI Blog2023 (11) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... .2019, requested the Commissioner Of Customs (Export), Air Cargo, New Custom House, IGI Airport, New Delhi for permitting them to re-export the said jewellery. However the Additional Commissioner (Adjudication) vide his letter dated 10.12.2019 forwarded this letter to the Additional Director DRI for necessary action. 3. Aggrieved by the order of the Tribunal, Revenue filed Customs Appeal Nos. 17 to 19 of 2020 along with a stay application before the Hon'ble Allahabad High Court which was admitted but no stay was granted. In fact no order was passed by the Hon'ble High Court on the stay application filed by the revenue. The text of the Hon'ble High Court order dated 10.09.2020 is reproduced below: "Heard Admit Issue notice." 4. Despite the fact that no stay has been granted by the Hon'ble High Court, the concerned officers did not allow the re-export of the gold jewellery as directed by this Tribunal Vide order dated 12.09.2023 (Supra) and the appellant was compelled to file an application under Rule 41 of the CESTAT (Procedure) Rules, 1982. Vide order dated 11.12.2020, on the request made by the revenue, Tribunal allowed further time to the concerned revenue authorities to pursu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Allahabad. The appellant requested for permitting re-export of the gold jewellery as was directed by the Tribunal vide Order on 12.09.2019. Despite this, the Commissioner of Customs (Export) Air Cargo Complex, New Delhi has not permitted the re-export of the said gold jewellery even till today despite the applicant reminding the Commissioner a number of times. 6. Subsequently appellant filed another application under Rule 41 of the CESTAT (Procedure) Rules, 1982 registered as Customs Miscellaneous Application No. 70117 of 2021 seeking directions for the Commissioner Customs to comply with the earlier order of this Tribunal. Vide order dated 22.09.2021 Tribunal allowed time to the revenue to explain why the order passed by the Tribunal on 21.06.2021 has not been implemented. This miscellaneous application was allowed by Miscellaneous Order No. 70056 of 2021 dated 17.11.2021. The respondent Principal Commissioner of Customs, Noida and Commissioner of Customs (Exports) IGI Airport, New Delhi were directed to strictly comply with the order passed and to allow re-export of the goods of the appellant within 10 days and report compliance in writing on 29.11.2021. In para 8 of this ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulations nor can it be purported to be done under them and is illegal. e) In the case of Ganesh Benzoplast [2020 (374) ELT 552 (Bom.)], High Court of Bombay held "Thus seizure may be said to be the first step to confiscation. So when the order of confiscation is set aside, the order of seizure cannot survive. The legal implication of this is that without any order of seizure or confiscation, respondents are holding on to the goods of the petitioner. Such holding on is clearly without any authority of law and per se illegal. In fact such an action may amount to deprivation of the petitioner of his property without any authority of law and thus violative of Article 300A of the Constitution of India. In the present case no order stands as of now for confiscation of the seized gold/ jewellery which was owned by the appellant and was exported to be received by M/s. Vee Ess Jewellers for job work. The said consignee has not come forward to get the said consignment. After the confiscation order with respect thereto is set aside, the fact remains is that the appellant is the owner of those gold jewellery articles. Clearly, it is a case of the officers illegally holding on to the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel was permitted, accordingly, which he furnished by letter dated 10.12.2021. 2. After the matter was reserved for orders on 07.12.2021 and the said letter was filed by the learned Counsel for the appellant, the Departmental Representative also sent a letter dated 13.12.2021 including additional submissions received from Air Cargo (Export), New Delhi vide their letters dated 12.12.2021 and 13.12.2021. A perusal of those documents shows that the ownership of subject goods were a matter of dispute before the Dept Recovery Appellate Tribunal according to which the goods do not belong to the appellant at all and they belong to M/s Vee ESS Jewellers (to whom the appellant had exported the goods but who has not cleared them from customs) and that M/s Vee Ess Jewellers have hypothecated them to State Bank of India. Along with these documents vide the aforesaid letter Authorised Representative has also submitted that "allowing the re-export will frustrate the claims of the contending parties on the title of the goods". 3. In view of the above, we deemed it appropriate that before for pronouncing the orders with respect to the compliance of the above mentioned final order and the mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal may graciously be pleased to rectify the mistake apparent on the record of the case and set aside the direction to an extent it directs the applicant to allow export of 48.5 Kg (gross weight) of gold, covered under Airway Bill No. 618 SIN 6672 0264 dated 05.02.2009 to the appellant and may pass any other order or directions as this Hon'ble Tribunal may deem fit and proper in the given facts and circumstances of the case." 2. This has reference to the order dated 12 September, 2019 passed by the Tribunal disposing the appeals. 3. An application for Rectification of Mistake can be moved within six months from the date of order as is contemplated under Section 129B of the Customs Act. The application, therefore, cannot be entertained. It is, accordingly, rejected." 10. After the dismissal of the Rectification of Mistake application filed by the Revenue applicant again approached the Revenue Authorities seeking implementation of the order of the Tribunal as above and seeking permission to re-export the gold jewellery. The letter written by the appellant on 28.07.2022 were just falling to the deaf ears of the concerned Commissioner who neither replied to the said letter nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Customs (Export) IGIA New Delhi is not permitting the re-export of the goods even after taking the Bank Guarantee as directed. It is noted that order of 12.09.2019 was passed by this Tribunal after giving due hearing to the Revenue and after proper examination of the facts and law on the said subject the judgment of 12.09.2019 was to be followed invariably since the decision of higher Authorities are binding on all the Authorities working within the jurisdiction of that Appellate Authority-CESTAT. From the facts as narrated above it is quite evident that concerned officers are acting in defiance of the orders of this tribunal, by violating the principles of judicial discipline. Sufficient time and opportunity has been given to the concerned authorities to act as per the law, and follow the rule of law as has been provided by the Constitution of India. However the arrogance of these officers by not implementing the orders of this tribunal is self evident even when by the order dated 21.06.2021, the tribunal by asking the applicant to file a bank guarantee and keep it alive till the disposal of the Appeal Filed by the revenue before Hon'ble Allahabad High Court has protected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) 3 SCC 573 (para-25), Hon'ble Supreme Court laid down the law that if for any reason, the subordinate authority is of the view that the directions issued by the Court are contrary to statutory provision or well established principles of law, it can approach the same Court with necessary application/petition for clarification or modification or approach the superior forum for appropriate reliefs. We may note here that in the present case, as we have already noticed, the appellants have not questioned the final order of the Tribunal dated 27.02.2012, which order has attained finality. 22. In the case of Triveni Chemicals Limited vs Union Of India & Anr, (2007) 2 SCC 503 (para-9), Hon'ble Supreme Court held it was obligatory on the part of the authorities concerned to comply with the order passed by the Collector (Appeals). The authorities were bound to do so in view of the doctrine of judicial discipline. 23. In the case of Union of India and others Vs. Kamlakshi Finance Corporation Ltd., 1992 Supp (1) SCC 443 (para-6), Hon'ble Supreme Court held the High Court has rightly criticised the conduct of the Assistant Collectors and the harassment to the assessee caused b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commission. The rule of precedence is equally applicable to intra-court appeals or references in the hierarchy of the Commission." 15. This principle was also laid down by Supreme Court in Dharma Chand Jain vs. The State of Bihar AIR 1976 SC 1433 and the observations are: "The State Government being a subordinate authority in the matter of grant of a mining lease, was obliged under the law to carry out the orders of the Central Government as indicated above. But the State Government declined to do so on the ground that it had laid down a policy that the mining leases in respect of the area should be given only to those who were prepared to set up a cement factory. It was clearly not open to the State Government to decline to carry out the orders of the Central government on this ground, particularly because the Central Government was a tribunal superior to the State Government...................." 12. In Smt. Kaushalya Devi Bogra and others vs. The Land Acquisition Officer and another [AIR 1984 SC 892], the Supreme Court also observed that the direction of the Appellate Court is binding on the courts subordinate thereto and that judicial discipline requires and decorum kn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case for imposition of cost on the Commissioner to ensure that he understands the meaning of the phrase "Judicial discipline'. 17. As the Commissioner has acted in flagrant falling the authority of this Tribunal the matter needs to be referred to the Hon'ble jurisdictional High Court for initiation of contempt proceedings against the concerned Commissioner. 18. A copy of this order shall be sent to the Revenue Secretary, Government of India, Chairman CBEC, Principal Chief Commissioner (New Delhi) & Chief Commissioner Meerut for taking necessary steps to ensure that no such incident happens whereby the authority of a higher Appellate Authority is sought to be eroded by the Commissioner. Vide Circular No 1035/26/2016-CX dated 04.07.2016, Board has itself directed that order needs to be implemented even if stay application against the order of tribunal is pending before High Court or Supreme Court. It appears that the concerned officers even act contrary to the instructions issued by the Board from time to time. Relevant excerpts are reproduced below: "Part II: When demand is confirmed by Hon'ble CESTAT or Hon'ble High Court & stay is pending before Hon'ble High Court or Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
