T.P. Nambiar, Member (J) -
(1.) THIS is a Stay Petition filed by the Collector of Customs, Calcutta praying for stay of the operation of the Tribunal's Order Nos. 532/Cal/90 & 533/Cal/90 dated 29-10-1990; 154/Cal/90 dated 30-4-1990 and 224(A)/Cal/90 dated 26-4-1990. The learned S.D.R., Shri M.N. Biswas appearing for the applicant in the first instance contended that the Department had already filed a reference application to the Hon'ble High Court against the rejection of the Reference Applications filed by the Department before this Tribunal. Shri Biswas contended that the Department could take a good chance to refer to the points of law to the Honourable High Court and to get a favourable decision on those points arisen out of the orders in question. Originally, the Department had stated in the application that four points of law had arisen out of the orders passed by this Tribunal. He further contended that the Department has got a strong prima facie case and the interest of justice requires that the stay should be granted in this case. It was also contended that in all such cases the Tribunal has the power and jurisdiction to grant the stay and in this connection, the decision of the Supreme Court reported in AIR 1986 (SC) 421 the case of I.T. Commissioner, Delhi v. Bansidhar. Relying on the abovesaid decision he contended that the Tribunal has the jurisdiction to pass a Stay Order during the pendency of the Reference Application before the Hon'ble High Court. Shri Biswas contended further that the order of this Tribunal was mainly based on the orders of the Bombay High Court. In this connection, he pointed out that the case of Vijoy Kumar which was referred to in the order of this Tribunal was not applicable to the facts of this case. He also pointed out that in the above case of B. Vijoy Kumar, the goods were imported against a letter of credit which was opened after the C.C.I. & E.'s letter dated 17-3-1986 addressed to B. Vijoy Kumar and in the case of Dimexion, the letter of credit was opened after Collector's letter dated 15-5-1986 addressed to the Federation indicating permissibility of canalised items against Additional Licences. As against this, in the present case no letter of credit was opened by the importers; only a contract was concluded on 12-3-1986 with the supplier which could always be cancelled without any stake. Further, this contract was after the cut-off date: 18-10-1985 and before C.C.I. & E.'s letter dated 17-3-1986 and the Collector's letter dated 15-5-1986 mentioned above. Accordingly, at the relevant time, the present importers had no reason to believe that they were within that rights to import the goods. Their action of placing order for the goods in spite of the Supreme Court judgment dated 5-3-1986 in Raj Prakash Chemical's case only indicates their mala fides. It was also contended by Shri Biswas that in all the Import Policies relaxation has been made in respect of importation of restricted items only where the relevant letters of credit were opened before the specified dates and no mention is made about contract or order for the goods. Hence, according to Shri Biswas, the present case is clearly distinguishable from the above two cases discussed by the Hon'ble Bench. He also relied on the decision of the Supreme Court reported in 1991 (53) ELT 498 in the case of Prem Chand Samchand Shah v. Union of India and relied on paras 13 and 16. Relying on the abovesaid decision he pointed out that the Supreme Court had stated in the order dated 18-4-1985 that the Supreme Court did not do away with canalisation. He also relied on the observations of their Lordships to the effect that those observations will only indicate that import of canalised items under additional licences issued to export houses like the petitioner - Prem Chand, would be permissible if the Import Policy prevailing at the tune of import permits them to import such items. He, therefore, contended that it depends on the permission of the Import Policy prevailing at the tune of import. He relied on the observations of their Lordships in para 16 wherein their Lordships referred to the decision of M/s. B. Vijoy Kumar & Co. v. Collector of Central Excise and Customs. He, therefore, contended that in the case of B. Vijoy Kumar the appellants imported canalised items under bona fide intention and therefore, the Supreme Court set aside the orders of the Appellate Tribunal with regard to the confiscation of the goods and imposition of redemption fine on the ground that Tribunal failed to deal with all the submissions of the party with regard to the interpretation and the effecting of earlier judgment of the Court in the case of Raj Prakash Chemicals. Relying on the above decision he further contended that the case of Vijoy Kumar was decided on the facts and circumstances of that case only and that could not be taken into consideration for deciding the present case. It was also the contention of Shri Biswas before us that in the case of Raj Prakash Chemicals the Supreme Court had clearly held that the cut-off date is 18-10-1985. In such circumstances, he contended that the Department has got a strong case in their favour. In such circumstances, he stated that this is a. fit case for grant of stay. He also relied on the Section 131 of the Customs Act, 1962. He also contended that the interest of justice requires that the orders should be stayed and if the amount is paid to the respondents they will be persuaded to unjust enrichment and the Department will not be in a position to recover the amounts from the respondents. He also contended that they had already disposed of the goods in question. He also contended that the question of mala fide may have a bearing upon imposition of penalty under Section 112 of the Customs Act, 1962, but it has no bearing with respect to confiscation of the goods under Section 111(d) of the Customs Act, 1962. Shri Biswas also referred to the main Reference Application sent by the Custom House to the Registry under cover of his letter dated 4-5-1991 and contended that there is no provision under the Customs Act for grant of interest on late refund of duty, fine, penalty etc. and Tribunal being creature of the Act could not pass any order for such payment of interest, particularly, when there is no such prayer in the appeal petition filed by the importer. In this connection, he drew our attention to the following case laws:
1989 (41) E.L.T. 279 (Spl. Bench)
1989 (43) E.L.T. 429 (Spl. Bench)
1991 (51) E.L.T. 255 (All.)
Shri Biswas also contended that as an appeal for enhancement of assessable value filed by the Department is already pending before the Special Bench, the cross objection filed by the Department before this Bench for invoking 111(m) of the Customs Act, 1962 should have been transferred to the Special Bench for simultaneous disposal. He contended that the same goods cannot be adjudicated twice, when the cause of action is one and the same i.e. enhancement of value and misdeclaration, thereafter, of the same goods.
(2.) The learned Advocate, Shri G.E. Vahanvati appearing along with Shri M.M. Jaykar, also Advocate, for the respondents contended that the Tribunal had gone into all the aspects of the relevant portions of the orders of the Tribunal in this behalf. He, particularly, pointed out that paras 4 & 5 of the abovesaid order wherein the Tribunal had discussed all these matters including the judgments of Raj Prakash Chemicals, B. Navin Chander and Vijoy Kumar's cases. He reiterated the observation made by the Tribunal in the abovesaid order. It was also contended before us that the first direction was given by the Supreme Court on 18-4-1985. It was only on 18-10-1985 the Supreme Court stated that the items manufactured by Raj Prakash Chemicals should not be cleared. In this connection, he relied on the observation of the Supreme Court in the case of Raj Prakash Chemicals dated 5-3-1986 and referred to para-11 of the abovesaid judgment. He contended that the Supreme Court therein observed that it is not in dispute these chemical items can be imported. In such circumstances, it was his contention that the case of the respondents is bona fide in view of the above observations of the Supreme Court as understood by them. He also relied on the letter of the C.C.I. dated 17-3-1986 wherein it was stated that canalised items are permitted to be imported. That letter was addressed to M/s. Vijoy Kumar & Co. He also relied on the Trade Notice issued by the Collector of Customs, Bombay on 14-5-1986, wherein it was stated that canalised items are permissible for import. He also contended that several parties who are standing on the same footing as that of the respondents, were already granted refunds and these facts were clearly indicated by the Tribunal in the order passed by the Tribunal in rejecting the Reference Applications.
In this connection, he also relied on the decision of the Supreme Court in the case I.T. Commissioner v. Bansidhar and Sons and the Supreme Court in this case has stated that in appropriate cases if the assessee feels that a stay of recovery pending disposal of Reference Application, is insisted on or is in the interest of justice, then the assessee is competent to apply before the appellate authority to grant the stay pending disposal of the Reference by the High Court. It was his contention that in the facts and circumstances of the case, the interest of justice requires that no stay should be granted to the applicant. He also stated that the Hon'ble High Court had already passed the order dated 13-5-1991 directing the Tribunal to refer two questions of law and handed over a xerox copy of the order passed in the abovesaid proceedings. It was his contention that merely because the High Court had ordered that these two questions are to be referred to, the stay as prayed for cannot be granted. It was his contention that these matters will be argued before the High Court by the respondents and till then, no such stay is warranted on the facts and circumstances of the case: He also relied on the judgment of the Bombay High Court reported in 1991 (54) E.L.T. 67 in the case of R. Kumar & Co. v. Union of India. Relying on the abovesaid decision it was stressed before us that there are bona fides on the part of the respondents, the confiscation was uncalled for. He, therefore, stated that the stay application may be rejected.
(3.) WE have considered the submissions advanced on behalf of the applicant Collector as well as the respondents. As per the decision of the Supreme Court in the case of I.T. Commissioner, Delhi v. Bansidhar & Sons it is seen that in appropriate cases if the parties feel that the stay of the order passed by the Tribunal is required, then they are entitled to apply before the Appellate Authority for grant of stay till disposal of reference by the High Court or until such time the Appellate Authority thought fit. Their Lordships of the Supreme Court also held that the Supreme Court had no such power of granting stay. It was also held by their Lordships that the proper authority for granting the stay is the Appellate Authority. That decision was rendered in the context of the Income Tax Act. The provisions of the Income Tax Act and the Customs Act in this regard are pari materia. Therefore, those observations made under the Income Tax Act are applicable to the Customs Act also.;