TMI Blog1993 (3) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... in Indian waters it was apprehended by Commander I.N.S. Sharabh who brought it to Paradeep Port on 12-9-1980 with crew and cargo consisting of fishes prawns and shrimps. The Customs Officers seized the trawler and cargo on 2-10-1980. A proceeding for confiscation of the cargo under Section 113(a) and the trawler under Section 115(2) of the Act was initiated and ultimately the Collector, Central Excise and Customs, Bhubaneswar, by order dated 8-1-1981 (Annexure-1) ordered confiscation of both the cargo and the trawler, but gave option to the owner of the cargo to pay fine of Rs. 2 lakhs in lieu of confiscation of the cargo and owner of the trawler to pay Rs. 2 lakhs in lieu of confiscation of the trawler. The Collector allowed the Trawler and goods to leave India after paying the above fine amounts. 3. Aggrieved by above decision of the Collector, Opposite Party No. 1 (hereinafter referred to as 'Charterer') carried the matter in appeal to the Central Board of Excise Customs who by order dated 5-9-1981 (Annexure-2) set aside the orders of confiscation of both the cargo and the trawler with the following observations : "The movement of the trawler off the Indian Coast where she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 lakhs. It is stated in the counter that against Tribunal's order dated 23-12-1991, petitioner has moved another reference application and it is pending. As to rejection of reference due to delay, we may say that the same cannot stand in the way of the petitioner in approaching this Court under Article 226; more so, when the approach is almost on the heels of rejection of the reference, 6. The aforesaid orders dated 10-5-1990 and 23-12-1991 are assailed by the Collector, Central Excise and Customs, Bhubaneswar, in this proceeding instituted on 26-2-1992. 7. Mr. Mishra for the petitioner attacked the aforesaid orders of the Tribunal on the following grounds : (a) Powers of the Tribunal, a statutory authority, are circumscribed by different provisions in the Act. Its powers are limited by the Act itself and there being no express provision under which the Tribunal can award compensation, it traversed beyond its powers in awarding compensation of Rs. 5 lakhs in its order dated 10-5-1990. (b) Even accepting that the Tribunal had the authority in law to award compensation, it was not justified in law in raising the same to Rs. 20 lakhs by way of amendment as there was no mist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Appellate Tribunal has been constituted for the first time. Under Section 128 (old), any person aggrieved by any order passed under the Act (not being an order passed under Section 130) can prefer an appeal and the appellate authority shall pass such order as it thinks fit, confirming, modifying or annulling the order appealed against. Under Section 131 (old) any person aggrieved by any order passed under Section 128 could move the Central Government in revision and the latter was empowered to annul or modify the impugned order. According to sub-section (2) of Section 131B (new) every proceeding pending before Central Government under Section 131 (old) before the date of coming into force of the amendments and any matter arising out of or connected with such proceeding and which are so pending, shall stand transferred to the Tribunal constituted under Section 129 (new). 11. In the case at hand, the Collector, Customs exercising powers under Section 122 of the Act held that the cargo and the trawler were liable to confiscation under Sections 113 and 115(2) of the Act and gave option to the respective owners to pay fine in lieu of confiscation under Sections 125(1) and 115(2) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 129B of the Customs Act are similar in nature to the powers granted to the Income Tax Appellate Tribunal under Section 254 of the Income Tax Act, and therefore, the decision of the Apex Court in Income Tax Officer, Cannanore v. M.K. Mohammad Kunhi, 71 I.T.R. 818 is applicable to the facts of the case. In the Apex Court, the question was whether the Income Tax Appellate Tribunal had the power to grant stay while exercising power under Section 254 of the Income Tax Act, 1961. It was held : "In our opinion the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. This is particularly so when Section 220(6) deals expressly with a situation when an appeal is pending before the Appellate Assistant Commissioner, but the Act is silent in this behalf when an appeal is pending before the Appellate Tribunal. It could well be said that when Section 254 confers appellate jurisdiction, it impliedly grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution and that the statutory power carries with it the duty in proper cases to make such orders for staying proceeding as wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants the seized goods as they were pilfered away. In such facts the Supreme Court had observed that in case the goods are not finally traceable and the liability to account for the goods is fixed in the hands of one or both of the respondents, the Tribunal would do well to examine and decide what amount of compensation in lieu of the goods should be payable to the appellants. In our view such direction of the Supreme Court in the facts of that case cannot be read as meaning that the Tribunal has jurisdiction to grant compensation if the Customs authorities were unable to give back the appellant the seized goods. 18. In paragraph 46, the Tribunal has referred to the decision of the Calcutta High Court in Union of India v. Sambhunath Karmakar - 1986 (26) E.L.T. 719: whose facts and ultimate decision are as follows : The Collector of Central Excise had first ordered confiscation of gold and gold ornaments which had been seized. Subsequently, he held that the confiscation order of seized gold was not sustainable and he ordered release of the confiscated gold. The same, however, was not returned by the authorities and the owner took up the matter to the High Court where a Singl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in exercise of powers under Section 482, Cr. P.C. a Sessions Judge cannot. As to the award of the amount in question to do complete justice, it may be stated that the power to pass appropriate order to do complete justice inheres in the apex court of the country only, of which mention has been made in Article 142 of the Constitution. This power is not available even to High Courts, as pointed out recently by a Full Bench of this Court in Krishna Chandra v. Union of India , AIR 1992 Orissa 261 (See paragraphs 20 and 21). Because of these, we would state that the Tribunal could not have awarded the sum in question - in original or revised - either in exercise of its inherent power or with a view to do complete justice between the parties. 21. In the case at hand. Board obviously annulled the decision of the Collector exercising powers under Section 128 (old) by holding that the order of confiscation was not sustainable in law. As, however, no order was passed relating to refund of the fine amount which the Thai Company had paid in lieu of confiscation of the Cargo, the Charterer preferred revision before the Central Government which came to be transferred to the Appellate Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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