2011 (3) TMI 636 - AT - Customs

Application of stay - there could be no doubt that the Order-in-Appeal against the same is an interim order of the Commissioner (Appeals) and not an order within the meaning of Section 128A(3) of the Customs Act, 1962 - If that be so, it is to be held that the present appeal of the Commissioner against an interim order passed by the Commissioner (Appeals) is not maintainable - Any genuine case of the Revenue cannot be allowed to be defeated by any delay on the part of the Commissioner (Appeals) - It is clarified that this direction is being issued for the ends of justice under Rule 41 ibid

Summary

Issues:
1. Stay of operation of the impugned order passed by the Commissioner (Appeals).
2. Maintainability of the appeal against the interim order.
3. Invocation of Rule 41 of the CESTAT (Procedure) Rules, 1982 for complete justice.

Issue 1: Stay of Operation of the Impugned Order:
The application filed by the department sought a stay on the operation of the interim order passed by the Commissioner (Appeals) in response to an appeal filed by the respondent against the Order-in-Original issued by the Additional Commissioner of Customs. The High Court directed that the impugned order be implemented unless the department obtained a stay from the Tribunal within the prescribed period, which led to the department approaching the Tribunal within the given timeframe.

Issue 2: Maintainability of the Appeal Against the Interim Order:
The respondent's counsel raised a preliminary objection regarding the maintainability of the appeal itself, arguing that interim orders of the appellate Commissioner are not appealable to the Tribunal under Section 129A of the Customs Act, 1962. Citing a previous Tribunal decision, it was highlighted that appeals against interim orders were not maintainable. As the impugned order was deemed an interim order by both parties, the Tribunal concluded that it did not fall under the category of appealable orders as per Section 129A of the Act, leading to the dismissal of the appeal on grounds of non-maintainability.

Issue 3: Invocation of Rule 41 for Complete Justice:
Considering the circumstances of the case, the Tribunal invoked Rule 41 of the CESTAT (Procedure) Rules, 1982 to ensure complete justice. The Tribunal noted that the Commissioner had several grievances against the interim order, particularly concerning the revenue's safeguarding. Emphasizing that any genuine revenue case should not be jeopardized by delays, the Tribunal directed the Commissioner (Appeals) to adjudicate the pending appeal on its merits, providing both parties a fair opportunity to present their case. This direction was issued under Rule 41 to serve the interests of justice.

In conclusion, the Tribunal found the appeal against the interim order to be non-maintainable under the Customs Act, directed the Commissioner (Appeals) to address the revenue's concerns in the pending appeal, and invoked Rule 41 for ensuring justice in the case.