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TMI Blog2021 (8) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... ments and things. Sub-section (1) of the section 110 provides that if the proper officer has reason to believe that any goods are liable to confiscation under the Act, he may seize such goods. In the present case the goods have only been seized under sub-section(1) of section 110 and have not been confiscated under section 111 of the Customs Act. The ownership of the goods, therefore, continues to be with the person from whom the goods have been seized, namely the appellant. Rule 41 of the 1982 Procedure Rule provides that the Tribunal may make such orders or give such directions as may be necessary or expedient to secure the ends of justice. In the facts and circumstances of the case, it is considered necessary and expedient to issue a direction to the respondent Commissioner of Customs (Preventive) to permit the applicant/appellant to inspect the goods seized on 29.10.2012 - the appellant shall appear before the Additional Director in the Office of the Directorate of Revenue Intelligence, New Delhi on August 31, 2021 at 11 am on which date the Additional Director may either permit the applicant to inspect the seized goods or may fix another date within the next one week for inspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 28 (5) of the Customs Act. 6. Thereafter, the appellant filed a Writ Petition in the Delhi High Court stating that since the amount had been deposited within 30 days from the issuance of show cause notice, the goods should be released in terms of section 28 (5) of the Customs Act. This petition was also directed to be treated as a representation and the respondent was directed to pass an appropriate order within two weeks from the date of receipt of the order. 7. The appellant was informed by the Commissioner of Customs (Preventive), by a letter dated 24.03.2014, that the demand against him crystallized to ₹ 52,19,582/- but as the appellant had deposited only ₹ 27,50,669/-, the same could not be treated as compliance of the provisions of section 28 (5) of the Customs Act. 8. The appellant thereafter filed another Writ Petition seeking provisional release of the goods. This Writ Petition was disposed of on 28.05.2020 with a direction that if the petitioner prefers an application for provisional release of the goods within a period of one week, the respondent would decide the provisional release application within a period of two weeks from the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a proper condition, the appellant would not be able to reap the benefit of the order. Learned Senior Counsel submitted that the Tribunal has ample powers under rule 41 of the Customs Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 [1982 - Procedure Rules ] to issue a direction for inspection of the watches and in support of this contention learned Senior Counsel placed reliance upon the decisions of the Supreme Court in Union of India (UOI) and ors. vs. Paras Laminates (P) Ltd. [1990 (49) E.L.T. 322 (S.C.) ] and The Income Tax Officer, Cannanore vs. M.K. Mohammed Kunhi [[1969] 71 ITR 815 (S.C.) ] as also the decision of the Tribunal in Indian Oil Corporation Ltd. vs. CCE [2006 (199) E.L.T. 343 (Tri. - Chennai)]. 14. Shri Rakesh Kumar and Shri Sunil Kumar, learned Authorized Representatives of the Department, however, vehemently opposed the application and submitted that without there being any decision or order of the Adjudicating Authority or of the Commissioner (Appeals) under section 128A of the Customs Act or of the Board under section 129A of the Customs Act, the application was not maintainable. Learned Authorized Representatives pointed out that the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier approached the Department for inspection of the goods seized but no orders were passed on the application. Since the goods were seized in 2012, the applicant is anxious to know the condition of the goods for upon it would depend whether the appellant would at all like to pursue the remedy for provisional release of the goods. 20. Except for raising technical pleas relating to the maintainability of the application filed by the appellant for inspection of the seized goods and the lack of power with the Tribunal to issue such a direction, the learned Authorised Representatives have not pointed out what prejudice, if any, would be caused if the appellant is permitted to inspect the goods seized on 29.10.2012. Each of the objections raised on behalf of the Department can now be considered. 21. It has been urged by the learned Authorized Representatives appearing for the Department that under rule 41 of the 1982 Procedure Rules power has been conferred upon the Tribunal to make orders or give directions in relation to the orders it has passed and therefore on a plain reading of this rule, the provision of rule 41 cannot be invoked as no order has been passed by the Tribunal. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is in exercise of the powers conferred by sub-section (6) of section 129C of the Customs Act that the 1982 Procedure Rules have been framed and it is the aid of rule 41 of the 1982 Procedure Rules that has been taken by the learned Senior Counsel of the appellant to press the relief claimed in the application. Thus, it is not possible to accept the contention of the learned Authorized Representatives of the Department that since the Customs Act does not provide for inspection of the seized goods, a direction cannot be given by the Tribunal for such inspection. 25. Learned Authorized Representatives also submitted that any direction by the Tribunal to permit inspection of the seized goods would ultimately open flood gates as it will become a common practice to move such applications. This certainly cannot be made a ground for rejecting the application. It will always be open to a litigant to avail such remedy as is permissible in law and merely because many applications may be filed, cannot be made a ground to refuse a remedy which is otherwise permissible in law. 26. Learned Authorized Representatives appearing for the Department also placed reliance on the decision of the Delh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may give custody of the seized goods to the owner of the goods on execution of an undertaking that he shall not remove the goods, except with the previous permission of the officer. 30. It is in the light of the aforesaid that the prayer made by the appellant for inspection of the seized goods has to be considered. 31. The Supreme Court in Paras Laminates, while examining the powers of the Tribunal under sub-section (6) of section 129C of the Customs Act, observed that the Tribunal has all such incidental and ancillary powers which are necessary to make effective the express grant of statutory powers. The relevant portion of the judgment is reproduced below :- "8. There is no doubt that the Tribunal functions as a court within the limits of its jurisdiction. It has all the powers conferred expressly by the statute. Furthermore, being a judicial body, it has all those incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers. Certain powers are recognised as incidental and ancillary, not because they are inherent in the Tribunal, nor because its jurisdiction is plenary, but because it is the legislative intent that the pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on Ex. parte Martin(1879) 4 Q.B.D. 212, 491 that "where an inferior court is empowered to grant an injunction, the power of punishing disobedience to it by commitment is impliedly conveyed by the enactment, for the power would be useless if it could not be enforced." (emphasis supplied) 33. A Division Bench of the Tribunal in Indian Oil Corporation also examined the powers conferred upon the Tribunal under rule 41 of the 1982 Procedure Rules. The relevant portion of the judgment is reproduced below :- "4. We have given careful consideration to the submissions. It is settled law that this Tribunal has incidental and ancillary powers which are required to be exercised to effectuate express powers granted by the statute. It appears to us that it is this species of authority which has been recognized under Rule 41 of the CESTAT (Procedure) Rules, 1982 which reads as under:- ******* The Hon'ble Supreme Court has also given its stamp of approval for such powers vide, for instance, Paras Laminates (P) Ltd. (supra). We need not repeat the factual circumstances placed before us by ld. counsel. In these circumstances, in our view, it is imperative that the Tribunal should ..... X X X X Extracts X X X X X X X X Extracts X X X X
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