TMI Blog2024 (1) TMI 1168X X X X Extracts X X X X X X X X Extracts X X X X ..... refuse to implement the Order under Appeal. As is well-known, mere filing of an Appeal does not operate as a Stay or suspension of the Order appealed against. The basic contention raised by the Revenue in their miscellaneous application is in respect of the cost imposed and the initiation of proceedings of contempt against the concerned Commissioner. Commissioner s have by way of the present miscellaneous applications rendered an unconditional apology for the delay in implementing the Final Order dated 12.09.2019. The Government procedure takes time and courts have to take a balanced view in the matter while taking harsh views in the matter. There are number of clearances by various agencies which cause delay though such delay cannot be justified and we express unhappiness for the delay of 04 (Four) years in the matter but taking note of all the facts and circumstances stated in the application specifically the unconditional apology tendered by the concerned commissioners we are of the view that end of justice will be met for which the concerned officers are warned to be careful in dealing with the matters like this one. In similar situation Hon ble Bombay High Court has in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Shed), ACC Import Commissionerate and (iii) Sh. Mayank Sharma, Authorized representative of M/s Mahesh Co. has requested M/s Mahesh Co. Pte. Ltd to bring the gold seized by DRI on 24.02.2009 at export shed from CELEBI under Customs Supervision, ACC(Export) along with shipping bill for examination and re-export in compliance of CESTAT Allahabad Misc. order No. 70121/2023 dated 09.11.2023 read with Final Order No. 71733-71742 of 2019 dated 12.09.2019. 4. However, the applicant tenders unconditional apology for delay in implementing the Final Order dated 12.09.2019 of this Hon ble Tribunal. The applicant craves leave of this Hon ble Tribunal to explain the reasons hereunder: 5. The department had acted bona fide which is evident from the following: i) the applicant had taken over as Principal Commissioner of Customs, Noida on 03.10.2023. The orders of the Tribunal, Final Order No. 71733 71742 / 2019 dated 12.09.2019, Miscellaneous Order No. 70019 / 2021 dated 21.06.2021, Miscellaneous Order No. 70056 / 2021 dated 17.11.2021, Order dated 07.01.2022 and Miscellaneous Order No. 70121 / 2023 dated 09.11.2023 were brought to his notice for the first time on 24.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ten to Shri Parv Aggarwal, Sr. Standing Counsel for early hearing and decision on stay application in the Customs Appeal No. 17/2020 in the case of M/s. Mahesh Co. PTE Ltd., Singapore, informing about the discussion on the matter by the Pr. Commissioner with Shri Shashi Prakash Singh, Ld. Additional Solicitor General of India. He was requested to discuss the matter with the Ld. Additional Solicitor General of India (Allahabad High Court), Shri Shashi Prakash Singh and efforts to be made for urgent hearing in the matter of M/s. Mahesh Co. PTE Ltd., Singapore pending before the High Court, Allahabad. However, despite the action taken by the Noida Commissionerate, the stay application is yet to be heard by the Hon ble High Court. 6. The aforesaid reasons clearly establish that the applicant, at no point of time, had any intention to defy the directions of this Hon ble Tribunal. On the contrary, Noida Commissioner was taking legal remedies with utmost sincerity. In any event, the applicant has already tendered his unconditional and unqualified apology for delay in complying with the order of this Hon ble Tribunal. 7. The applicant had joined the department in 06.09.1993 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the party confirms that the process has been initiated for re-export of the disputed gold jewellery and various dues which were required to be paid have been paid by the party. 7. We are not impressed by the statement made by the revenue in the miscellaneous application that they did not implement the order of CESTAT for the reason of the legal opinion given to them. In our view the issue is well settled by the decision of Hon ble Supreme Court in the case of Krishna Sales (P) Ltd., [1994 (73) E.L.T. 519 (S.C.)] wherein following has been held:- If the authorities are of the opinion that the goods ought not to be released pending the Appeal, the straight forward course for them is to obtain an Order of Stay or other appropriate direction from the Tribunal or the Supreme Court, as the case may be. Without obtaining such an Order they cannot refuse to implement the Order under Appeal. As is well-known, mere filing of an Appeal does not operate as a Stay or suspension of the Order appealed against. Moreover, such detention is likely to create several complications relating to the demurrage charges besides the possible deterioration of the machinery and goods. We ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the Court that in the future, adequate care would be taken to follow the law laid down by this Court scrupulously. Accordingly, the contempt notice was discharged. 10. In the case of General Instruments Company [2008 (224) E.L.T. 230 (Bom.)] Hon ble Bombay High Court has held as follows: 11. In my view, although, no case is made out of civil contempt as contemplated by the Contempt of Courts Act, 1971, yet, it is clear that the Joint Director and the Authorities have delayed compliance. He has given explanation for the delay and contended that it was not intentional. Ms. Bharucha was at pains to point out that the petitioner was also involved in the process and had been called upon to supply a draft of the necessary document. However, the fact remains that when this Court had directed that the application should be dealt with and considered within a particular time limit, the authorities were obliged to consider the same and if there was any difficulty they should have approached this Court for extension of time. That is admittedly not done. The amendment to the licence was carried out after the time stipulated in the order passed by this Court had expired. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orities would discharge their duties expeditiously as enjoined under the rules and as per the directions. Since they did not discharge the duty, necessarily, they were required to give explanation to the Court as to the circumstances in which they could not comply with the direction issued by the Court or if there was any unavoidable delay, they should have sought further time for compliance. Unfortunately, neither of the steps has been taken by the officer in that regard. Therefore, the High Court was constrained to impose the costs personally against him for non-compliance of the order. 5. It is true and we are alive to the fact that when the officer is to take steps as per the decision, some delay may occasion and generally the Courts would be reluctant to impose costs personally against the officers. But the officers are required to go to the Court, give the appropriate explanation and satisfy the Court that they were prevented by circumstances for non-compliance within the time specified by the Court. It is equally salutary to note that if the High Court feels it necessary to impose costs personally against the officers, the Court is required to enquire after giving noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st and in case they cannot adhere to the time limit, then, they must move the Court and seek extension well before the time expires. It is not open for them to urge that the applicant or the petitioner has not approached them within the said time limit. The moment an order of this Court is communicated, necessary steps must be initiated for its compliance within the time granted by the Court. Their first and foremost duty is towards the Court and without insisting upon the applicants or the petitioner s co-operation in all cases, they must endeavour to decide the applications or matters referred to them. Whenever they require the assistance or co-operation of parties, they must intimate them well in advance and not at the last moment. In all such cases, the Courts may not accept the explanation and the apology tendered much Later. All explanations, after the breach is already committed, cannot be accepted as a matter of course. The bona fides would then have to be tested. 11. In view of the discussions as above and in view of the unconditional apologies tendered, except the part whereby we have passed direction for implementation of our Final Order No 71733-71742/2019 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
