TMI Blog2023 (11) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... keep it alive till the disposal of the Appeal Filed by the revenue before Hon ble Allahabad High Court has protected the interests of revenue. As the Respondent Commissioner and Commissioner of Customs (Exports) New Delhi has not implemented the order of the Tribunal even after being directed under Rule 41 of CESTAT Procedure Rules, 1982 and having been allowed sufficient time and opportunity, this is a fit case for imposition of cost on the Commissioner to ensure that he understands the meaning of the phrase Judicial discipline - 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. It is directed that the concerned Commissioner should implement the order dated 12.09.2019 within fortnight of the receipt of this order - List this matter for reporting compliance with this order on 11.12.2023. - HON BLE MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) AND HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) APPEARANCE: For the Appellant: Shri Prakash Shah, Advocate Shri Nishant Mishra, Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the appellant was allowed vide Miscellaneous Order No. 70019 of 2021 dated 21.06.2021 directing as follows:- 8. After considering rival submissions, we find that in so far as the applicant is concerned, the Final order has only set aside the penalties under Section 112,1 14 and 114AA. It is undisputed that the jewellery was sent by appellant to M/s Vee Ess Jewellers Pvt Ltd., Noida for reconditioning who has not cleared it form the Customs. no redemption fine has been imposed upon the applicant nor has any notice been issued to the applicant for confiscation of the jewellery. if Revenue succeeds in its appeal before the Hon ble High Court, the penalties imposed upon the applicant may be restored. 9. In the facts and circumstance of the case we direct the applicant to submit a bank guarantee for Rs. 10 lakhs in favour of the Commissioner of Customs (Export), Air Cargo Complex, New Delhi with a copy of this Order and keep the Bank Guarantee alive till the disposal of the appeal filed by the Department before the Hon ble High Court of Allahabad. On submission of the Bank Guarantee, the Commissioner of Customs (Exports), IGI Airport, New Delhi shall within 10 day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure Rules by the appellant, order dated 21 June 2021 was passed directing the appellants to submit a Bank Guarantee which must be kept alive till the disposal of Revenue s appeal by the High Court and the Respondents were directed to allow export of the goods within 10 days of submission of such Bank Guarantee. Thus this order has also very cautiously taken care of Revenue s interest if its appeal before Hon ble High Court of Allahabad is allowed. c) We also note that the impugned order of the lower authority whereby gold jewellery was ordered to be confiscated and allowing redemption after paying redemption fine was set aside. The final order of Tribunal dated 12 September 2019 has clearly held the appellant/applicant to be the owner of the impugned gold/ jewellery. Also, in terms of order dated 21st June, 2021, as directed, the Bank Guarantee for Rs. 10 lakhs to remain alive till the disposal of Revenue s appeal before High Court has been deposited by the appellant. d) We see no reason with the Customs Authority to defy both the Final Order dated 12 September 2019 and Miscellaneous Order dated 21 June 2021 granting permission to appellant to re-export the impugned gold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On 06.12.2021 when the matter was listed for reporting compliance bench observed as follows: When the matter was called learned Counsel for the appellant submitted a copy of letter dated 2 December 2021 from Commissioner of Customs (Air Cargo Export) indicating that in view of the legal opinion received from the Solicitor General of India, Allahabad High Court, the Commissioner of Customs, Noida requested them to put on hold re-export of gold of the appellant. Learned Departmental Representative seeks time to take instructions from the Revenue. Adjourned to December 7, 2021 on top of board. 8. Vide order dated 07.01.2022 bench observed as follows: 1. The present matter was heard on 7 December, 2021 as far as the compliance of the Final Order No. 71733-71742/2019 dated 12.09.2019 and the Miscellaneous Order No. 70056/2021 dated 17.11.2021 is concerned. None of these orders were complied as per the directions therein. A letter dated 2.12.2021 was placed on record by the Revenue indicating that in view of the legal opinion received from the Additional Solicitor General of Allahabad High Court the Commissioner of Customs, Noida had requested Commissioner of Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o given the simultaneous liberty to give the reply and the requisite documents, if any, to the Department. Both parties shall place on record all such additional documents record of this appeal also all such additional documents as shall be exchanged between them. The matter thereafter be re-heard and compliance matter on 4 th April, 2022. 9. The concerned Commissioner failed to comply with this order also and filed an application for rectification of the mistake in the order of 12.09.2019. The application so filed was dismissed by the Tribunal vide Miscellaneous Order No.70044-70045 of 2022 dated 13.06.2022. Subsequent to the dismissal of the Rectification of Mistake application which in any case was filed much beyond the stipulated period as per Section 129 (B)(2) as per which this Rectification of Mistake application were to be filed within 06 months and were filed much later than that only to delay the cause of justice. While disposing of the two two applications for rectification of mistakes CESTAT vide its order No 70044/2022 and 70045/2022 both dated 13.06.2022 observed as follows: Order No 70044/2022 This application has been filed for modification of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e orders of this Hon'ble Tribunal; (b) This Hon'ble Tribunal be pleased to issue necessary directions to the Commissioner of Customs (Exports), New Delhi or such other officer of the Customs responsible for compliance to forthwith comply with the orders of this Hon'ble Tribunal dated 12.09.2019; (c) This Hon'ble Tribunal be pleased to issue necessary directions to the Respondent and the Commissioner of Customs (Exports), New Delhi or such other officers of the Customs responsible for permitting re-export of the said jewellery covered Airway Bill No. 618 SIN 6672 0264 dated 05 February 2009 to forthwith permit re-export of the said jewellery; (d) For such further and other reliefs as this Hon'ble Tribunal may deem fit and proper. 11. We have heard Shri Prakash Shah, Advocate Shri Nishant Mishra, Advocate appearing on behalf of the appellant and Shri Santosh Kumar, Authorized Representative for the Revenue. 12. Arguing for the applicant, learned counsel submits that it is now nearly more than 03 years that order of Tribunal dated 12.09.2019 has not been implemented, even after two orders dated 21.06.2021 17.11.2021 given by the tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is concerned, we find that it is undisputed that the earlier Final Order No.A /346/2012/EX (BR) dated 27.02.2012 as corrected by order dated 19.06.2012, whereby the Tribunal remanded the matter to the present appellant with specific directions, was accepted by the appellant/ Central Excise Department and thus became final. Therefore, it was not open for the Commissioner of Central Excise, Kanpur to pass the order ignoring the remand direction and confirming the demand on the same grounds as taken in the first order in original which was set aside by the Tribunal. 18. In view of the above discussion, we do not find any error in the observations made by the Tribunal with regard to judicial discipline . In the case of State of West Bengal Ors vs. Shivananda Pathak Ors, (1998) 5 SCC 513 (para-28), Hon'ble Supreme Court held that if a judgment is over-ruled by the higher court, the judicial discipline requires that the Judge whose judgment is over-ruled must submit to that judgment. He cannot, in the same proceedings or in collateral proceedings between the same parties, re-write the over-ruled judgment. 19. In the case of Bihar State Government Secondary School ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not acceptable to the department - in itself an objectionable phrase - and is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws. 24. In the case of Commissioner of Income Tax, Bhopal Vs. Ralson Industries Ltd., (2007) 2 SCC 326 (para-9), Hon'ble Supreme Court held that when an order is passed by a higher authority, the lower authority is bound thereby keeping in view the principles of judicial discipline. In the case of Bhopal Sugar Industries Ltd. Vs. I.T.O., AIR 1961 SC 182 (para-8 9), Hon'ble Supreme Court held that if a subordinate tribunal refuses to carry out directions given to it by a superior tribunal in the exercise of its appellate powers, the result will be chaos in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s certainly binding on the courts subordinate thereto. That apart, in view of the provisions of Article 41 of the Constitution, all courts in India are bound to follow the decisions of this Court. Judicial discipline requires and decorum known to law warrants that appellate directions should be taken as binding and followed. It is appropriate to usefully recall certain observations of the House of Lords in Broom v. Cassell Co.(1) Therein Lord Hailsham, L. C. observed: The fact is, and I hope it will never be necessary to say so again, that in the hierarchical system of courts which exist in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tier. Lord Reid added: It seems to me obvious that the Court of Appeal failed to understand Lord Delvin's speech but whether they did or not, I would have accepted them to know that they had no power to give any such direction and to realise the impossible position in which they were seeking to put those judges in advising or directing them to disregard a decision of this House. Lord Diplock observed at p. 874 of the Reports: It is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal or the High Court, if no stay is in operation. Hon ble High Court of Gujarat in case of Karnavati Club Ltd. (SCA No. 2422/2013) examined the entire Circular dated 01.01.2013 and in relation to SI. No 11, in para 29 of the judgment, upheld the direction contained in the circular, without any modification, 5.2 As a measure of liberalization and to ensure uniformity of practice, it is hereby directed that, recovery proceeding in relation to an order of Hon'ble High Court or Tribunal confirming demand of duty, may be initiated only after a period of sixty days from the date of order of the Hon ble Tribunal or Hon'ble High Court, as the case may be, where no stay has been granted by Hon'ble High Court or Hon'ble Supreme Court against the order of Hon ble Tribunal or Hon ble High Court, respectively. Suitable instructions should be issued to the concerned for the implementation of this order. 19. In view of the discussion as above we direct that the concerned Commissioner should implement the order dated 12.09.2019 within fortnight of the receipt of this order. 20. For causing delay in implementation of the earlier orders of this Tribunal without any ..... 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