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2018 (4) TMI 1435 - AT - CustomsRefund - Implementation of final order 835840/2005-cus dated 3-6-2005 - the order was not implemented by the Revenue even after lapse of 13 years - Confiscation of Gold Bars and Indian Currency - Rule 41 of the of Custom, Central Excise and Service Tax Appellate Tribunal(Procedure) Rule 1982 - Held that - from rule 41, it is clear that Tribunal has power to give effect or in relation to its order or to prevent abuse of its process or to secure ends of justice. This Tribunal time and again passed the orders under Rule 41 of CESTAT (Procedure) Rules 1982 for implementation of its order. Though the Revenue has filed custom appeal before Hon ble Bombay High Court against this Tribunal order dated 3-6-2005 but even after lapse of 13 years from the date of this Tribunal order, High court has not granted any stay to the Revenue, therefore the order of this Tribunal is enforceable. The Board has issued clarification vide Circular No.695/11/2003-CX dt.24.2.2003 that if the department is unable to obtain stay against Tribunal order, refund should be granted after 3 months of the order. This clearly shows that it is Board instruction to the field formation that order of the Tribunal should be implemented, if there is no stay against the said order. Since in the present case Revenue could not obtain any stay from the operation of this Tribunal order, there is no option left with them except the implementation of this Tribunal order dated 3-6-2005. Appeal allowed - Compliance of implementation of order be reported on 1.5.2018.
Issues Involved:
1. Implementation of the Tribunal's order dated 3-6-2005. 2. Jurisdiction of the Mumbai Zonal Bench. 3. Power of the Tribunal under Rule 41 of CESTAT (Procedure) Rules, 1982. 4. Revenue's failure to obtain a stay from the High Court. 5. Distinguishing previous judgments cited by the Revenue. Detailed Analysis: 1. Implementation of the Tribunal's Order Dated 3-6-2005: The applicant filed a Miscellaneous application under Rule 41, seeking a specific direction to the respondent to comply with the Tribunal's order dated 3-6-2005, which set aside the order of confiscation of 757 gold bras and Indian currency of 21 lacs. Despite the Tribunal's decision in favor of the applicant, the Revenue did not implement the order for over 13 years. The applicant's counsel argued that there was no stay granted by the High Court, and thus, the Tribunal's order was binding on the Revenue. The Tribunal concluded that the Revenue had no authority to withhold the implementation of the order for such an extended period, emphasizing the principle of judicial discipline as established by the Supreme Court in Kamalakshi Finance Corporation. 2. Jurisdiction of the Mumbai Zonal Bench: The Revenue contended that the jurisdiction for implementing the order lay with the Principal Bench in New Delhi, as the main appeal was decided there. However, the Tribunal referred to CESTAT Public Notice No. 2/05 dated 5-8-2005, which mandated that cases arising within the jurisdiction of a Zonal Bench should be filed and heard there. Since the applicant filed the application before the Mumbai Zonal Bench, which had jurisdiction over the applicant, the Tribunal affirmed that the Mumbai Zonal Bench was the proper jurisdictional bench to entertain the application. 3. Power of the Tribunal under Rule 41 of CESTAT (Procedure) Rules, 1982: The Tribunal examined Rule 41, which empowers it to make necessary orders or give directions to prevent abuse of its process or to secure the ends of justice. The Tribunal cited several judgments to support its authority to pass orders under Rule 41 for the implementation of its decisions. The Tribunal concluded that it had the power to entertain the present Miscellaneous application and direct the implementation of its order dated 3-6-2005. 4. Revenue's Failure to Obtain a Stay from the High Court: The Tribunal noted that although the Revenue had filed a Customs Appeal before the Bombay High Court, no stay was granted even after 13 years. The Tribunal emphasized that, in the absence of a stay, its order was enforceable. The Tribunal referred to the Supreme Court's decision in Kamalakshi Finance Corporation, which underscored the importance of following the orders of higher appellate authorities unless suspended by a competent court. 5. Distinguishing Previous Judgments Cited by the Revenue: The Revenue cited several judgments to argue that the Tribunal lacked the power to implement its own orders. However, the Tribunal distinguished these cases based on the Supreme Court's ruling in Kamalakshi Finance and other relevant judgments. The Tribunal reiterated that the principle of judicial discipline required the Revenue to implement the Tribunal's order in the absence of a stay. Conclusion: The Tribunal directed the respondent to implement its order dated 3-6-2005 within 15 days from the date of the current order, subject to the applicant executing a bond for the seizure value of the goods. The Tribunal also directed the respondent to report compliance by 1-5-2018.
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