2018 (7) TMI 553 - HC - Customs

Provisional release of the goods - pending adjudication of an appeal - power of appellate authority to grant interim order - Held that - Rule 4 of the Rules of 1982 empowers the appellate authority to hear and determine appeals and applications made under the Customs Act, 1962 before it. Noticeably, the Tribunal is empowered to determine applications apart from appeals by Rule 4 and application for interim relief for release of the goods will come within the definition of an application contemplated in Rule 4 of the Rules of 1982 - In a given case, when the tests for grant of interim order are satisfied, the Tribunal can proceed to grant the same. Non-grant of the same might result in the failure to secure the ends of justice. Since the Tribunal is adequately clothed with appropriate powers to consider and decide an interim application including the application for grant of provisional release of the goods and since the appeal is pending, there is no reason to interfere by way of a writ petition. Petition disposed off.

Summary

Issues:
Provisional release of goods pending appeal before Customs, Excise and Service Tax Appellate Tribunal (CESTAT) - Jurisdiction of the Tribunal to grant interim orders including release of goods - Interpretation of Rules 4, 28C, and 41 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982.

Analysis:
The petitioner sought provisional release of goods pending appeal before CESTAT against an order in original dated November 29, 2017. The petitioner contended that the appellate authority lacked the power to grant interim orders, citing a previous Tribunal order and arguing that the rules of business did not allow for such applications. On the other hand, the department's advocate argued that the Tribunal had the jurisdiction to pass interim orders, relying on Rules 4, 28C, and 41 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982. The Court considered these arguments and the available materials on record.

The Court referred to a previous Tribunal order, Unitech Enterprises, which discussed the power of the Tribunal to grant interim relief, highlighting the importance of balancing the interests of both parties and ensuring the availability of goods if they were to be confiscated eventually. This order also referenced a judgment by the Madras High Court emphasizing the inherent power of the Tribunal to pass necessary interim orders.

Rule 4 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 empowers the Tribunal to hear and determine appeals and applications, including those for interim relief like the provisional release of goods. Rule 28C outlines the procedure for filing and disposing of miscellaneous applications, while Rule 41 grants the Tribunal the authority to make necessary orders to prevent abuse of process or to secure justice. The Court emphasized that the Tribunal, being the designated authority to hear appeals, had the jurisdiction to consider applications related to the appeal subject matter and grant interim orders as deemed fit.

Ultimately, the Court concluded that the Tribunal possessed the necessary powers to decide on interim applications, including requests for provisional release of goods, during the pendency of an appeal. As the appeal was ongoing and the Tribunal had the authority to address such matters, the Court found no reason to intervene through a writ petition. The order disposed of the case, allowing the parties to pursue their remedies before the appropriate forum as per the law.