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TMI Blog1991 (8) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... nally, 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 = 1986 (24) E.L.T. 193 (SC) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms 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 Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 is sued 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. 3. 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 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court at paras 38 39 held as follows : 38. ...The Calcutta High Court, further, was of the view that a Court could not vest itself with such additional jurisdiction by invoking its inherent powers. Hence, the Court, in seisin of a reference under the I.T. Act could not issue an order of temporary injunction, according to the Calcutta High Court, or stay of proceedings which was an injunction in an indirect manner in respect of recovery of taxes. 39. In an appropriate case, if the assessee feels that a stay of recovery pending disposal of the reference is necessary or is in the interest of justice, then the assessee is entitled to apply before the appellate authority to grant a stay until disposal of reference by the High Court or until such time as the appellate authority thought fit. But in case the appellate authority acted without jurisdiction or in excessive jurisdiction or in improper exercise of the jurisdiction, then decision of such appellate authority can be corrected by the High Courts by issuing appropriate writs under Articles 226 and 227 of the Constitution." At para-42 their Lordships also held as follows : 42. Therefore, in our opinion it cannot be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to the High Court by the Tribunal. The findings of fact by the Tribunal are final. But the Hon ble High Court will answer the questions of law referred to the High Court by the Tribunal and after the judgment of the High Court is delivered the Tribunal has to pass necessary orders to dispose of the case in conformity with the judgment of the High Court as contemplated under Sec. 130D of the Customs Act, 1962. It is now seen that the High Court had reframed the above two questions. The learned Advocate, Shri Vahanvati contended that merely because the High Court had reframed the questions a stay cannot be granted automatically. It may be that only on the ground that the two questions are framed no stay can be granted. But, however, those two questions of law as reframed by the High Court go to show that the High Court was of the opinion that those questions of law had arisen out of the order of this Tribunal and had accordingly reframed the questions. The question No. (2) relates to the very jurisdiction of this Tribunal. Ultimately, the Tribunal had to dispose of the case on the opinion given by the High Court in this regard. The question of jurisdiction also is involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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