2020 (9) TMI 1121 - HC - Customs

Seeking implementation of the order of CESTAT - Right of Revenue to file an appeal in the HC against the order of tribunal - It is the submission of the learned counsel for the petitioner that the mere fact that the respondent is contemplating the filing of an appeal against Ext.P7 order cannot be a reason for not issuing directions for the implementation of Ext.P7 order - HELD THAT - It is trite that the appellate remedy being a statutorily conferred one, no litigant can be deprived of the statutorily permitted period for availing the appellate remedy, through coercive steps that effectively curtail the said period. Just as an assessee, who suffers an order of assessment cannot be compelled to fast track an appellate remedy through coercive steps initiated against him before the expiry of the statutory period available to him for approaching the appellate authority, the respondent herein cannot be compelled to implement Ext.P7 order when the statutorily granted time for filing an appeal against the said order is not over, and it is their stated case that they are preferring such an appeal against Ext.P7 order before a division bench of this Court. The right of the petitioner to insist on the respondent's complying with Ext.P7 order will arise only in the event of the respondents not filing an appeal within the statutory period provided for the same or if an appeal, when preferred within the said time, is dismissed by the appellate authority. Assuming that this court directs the respondent to implement Ext.P7 order of the appellate tribunal, before the statutory period for filing an appeal against the said order before the appellate authority is over, and the respondent fails to implement the directions of this court on the contention that it intends to file the statutory appeal within the time granted by the statute, this Court would not view the said conduct of the respondent as contumacious for the purposes of a contempt action at the instance of the petitioner herein - Prudence would dictate, therefore, that this court refrain from issuing peremptory directions at the said stage of the proceedings by following the well settled principles informing the exercise of writ jurisdiction, one of which is that the courts should not issue writs that are futile in nature. Petition dismissed.

Summary

Issues:
Seeking direction to implement Ext.P7 final order of the CESTAT, respondent's intention to file a statutory appeal against Ext.P7 order, petitioner's request for implementation of Ext.P7 order, consideration of statutory period for appeal, petitioner's opposition to adjournment, refusal of interim application, right to insist on compliance with Ext.P7 order, potential contempt action, prudence in refraining from issuing peremptory directions, dismissal of the writ petition.

Analysis:
The petitioner approached the Court seeking a direction for the respondent to implement Ext.P7 final order of the CESTAT. The respondent, however, expressed their intention to file a statutory appeal against the said order before a Division Bench of the Court. The respondent pointed out that they have a statutory period of six months to prefer an appeal against Ext.P7 order and are legally obliged to implement the directions only if the appeal is unsuccessful. The Court adjourned the matter to ascertain if the appeal was filed, but the respondent's counsel was absent during the next hearing, leading to a request for adjournment by the petitioner's counsel. The Court refused the interim application for implementation of Ext.P7 order at that stage. The petitioner's counsel insisted on orders, leading to the disposal of the writ petition.

The petitioner argued that the respondent's contemplation of filing an appeal should not prevent the issuance of directions for implementing Ext.P7 order. However, the Court emphasized the statutory scheme under the Customs Act, allowing a person aggrieved by the order to appeal within six months. It was highlighted that coercive steps to enforce compliance before the expiry of the statutory appeal period are not permissible. The Court drew a parallel with an assessee's right to the full statutory period for filing an appeal and stated that the respondent cannot be compelled to implement Ext.P7 order until the appeal process is completed.

Another aspect considered was the potential contempt action if the respondent failed to implement Ext.P7 order before filing the appeal. The Court cautioned against issuing futile writs and refrained from giving peremptory directions. Ultimately, the Court found the prayers in the writ petition premature and dismissed the petition accordingly.