Om Shiv Transport vs Union of India

Pursuant to our order dated 8-7-2015 passed in Central Excise Appeal No. 135 of 2015, we directed the learned Standing Counsel to supply all the orders of the Court to the District Magistrate, Allahabad so that he could be aware of the issue involved in the case. The District Magistrate is present today and has intimated the Court that pursuant to the letter of the Chief Secretary, Uttar Pradesh necessary directions were issued to the Nagar Nigam and other authorities to intimate the availability of the land and building at Allahabad. The District Magistrate has been candid enough to state that necessary information has not yet been made available to him. He however submitted that the Registrar CESTAT has not made any effort nor contacted the District Magistrate for the purpose of providing land or building to them. We, accordingly, direct the District Magistrate, Allahabad to take necessary information from various departments like the Allahabad Development Authority, Nagar Nigam, Allahabad, etc., and intimate the Court with regard to the availability of a suitable accommodation of 15,000 sq. ft. of land and building for the purpose of housing the Central Excise Appellate Tribunal at Allahabad. We also direct the District Magistrate to consider the land and building, which was earlier housed by the Central Administrative Tribunal, on Thornhill Road (Dayanand Marg), which was previously housed at Thornhill Road as well as the building in which the Income Tax Department, Allahabad is functioning on Dayananad Marg. The District Magistrate, Allahabad may also find out the availability of the space in the present building, which houses the Central Administrative Tribunal.

We were intimated that the Income Tax building has two Court rooms where the Income Tax Appellate Tribunal was functioning and one of the Benches has been shifted to Lucknow and, consequently, one Court room along with rooms for the Members of the Tribunal and for Members of the Bar are available on the Ist/IInd floor of the building and that the infrastructure is readily available.

We have been informed through an affidavit given by the Registrar, Customs, Excise & Service Tax Appellate Tribunal, New Delhi that the space is not available as it has been utilized by the Income Tax Department for other purposes.

Be that as it may. We direct the District Magistrate, Allahabad after intimating the Commissioner of Income Tax, Allahabad to make physical inspection of the Income Tax building and give a report with regard to the feasibility of housing the Customs, Excise & Service Tax Appellate Tribunal either on a temporary basis or on a permanent basis. At the same time, the District Magistrate will also inspect the adjacent building, namely, the Central Excise building and give a report with regard to availability of space in that building and also the feasibility of construction of an additional floor. The said inspection may be made after due intimation to the Central Excise Commissioner, Allahabad. The District Magistrate may also consider availability of space in the newly made buildings being built by private builders and developers, which has come up all over the city. The District Magistrate will also see the availability of private buildings and land, if Government building and land is not available. The District Magistrate, Allahabad may also consider the building, which was previously occupied by the Official Liquidator attached to the High at Tashkant Marg, Allahabad. We also direct the Commissioner of Income Tax, Allahabad and Commissioner of Central Excise, Allahabad to cooperate with the District Magistrate, Allahabad.

Let a comprehensive report be submitted by the District Magistrate by 20-8-2015.

We have perused the affidavit of Sri A. Mohan Kumar, Registrar, Customs, Excise & Service Tax Appellate Tribunal, New Delhi dated 28-7-2015 filed in Central Excise Appeal No. 135 of 2015. In paragraph 4 of the affidavit it has been stated that despite their best efforts suitable premises to locate the regional Bench at Allahabad has not been found.

In this regard, the District Magistrate has stated that no representative of the Tribunal ever met the District Magistrate for the purpose of allocation of land, building for the Bench of the Customs, Excise & Service Tax Appellate Tribunal at Allahabad.

We, consequently, direct the Registrar to place on record the correspondence, which they have made with the District Magistrate or with any State agency or private agency for acquiring the land and building for the purpose of housing the Customs, Excise & Service Tax Appellate Tribunal at Allahabad.

In paragraph 5 of the affidavit the Registrar has stated that the jurisdiction of the Bench at Allahabad is yet to be notified by the President CESTAT (under Section 129C of the Customs Act, 1962 (52 of 1962) read with Section 35D of the Central Excise Act, 1944 (1 of 1944), Section 86 of the Finance Act, 1994, Section 9C of the Customs Tariff Act, 1975.

In this regard, we find that the Government of India, Ministry of Finance, Department of Revenue has issued a notification dated 1-11-2013, which has been issued under the Central Excise Act, 1944, the Customs Act, 1962 and Chapter V of the Finance Act, 1994 notifying the creation of a Bench of Customs, Excise and Service Tax Appellate Tribunal at Allahabad, pursuant to which a communication dated 13-11-2013 was issued to the Registrar, Customs, Excise and Service Tax Appellate Tribunal, New Delhi intimating the creation of the new Bench at Allahabad having jurisdiction to hear the appeals arising out from U.P., which is to be carved out from Delhi Bench of the Customs, Excise and Service Tax Appellate Tribunal. The creation of the Bench and the jurisdiction of this Bench at Allahabad has been done by the Union Cabinet by its decision dated 24-10-2013. This creation of Bench prima facie appears to be in exercise of the powers under Section 129 of the Customs Act, 1962. Once this is done, we fail to understand as to how the Registrar of Customs, Excise and Service Tax Appellate Tribunal, New Delhi contend in paragraph 5 of the affidavit that the jurisdiction at Allahabad is yet to be notified under Section 129C of the Customs Act, 1962, which only gives the power to the Appellate Tribunal to regulate its own procedure. Once the Bench has been created and the place has been notified nothing further else is required to be done. It is admittedly, clear that the Registrar under the garb of some representation given by the Indirect Tax Bar Association is not allowing the functioning of the Bench at Allahabad for vested reasons.

We, accordingly, direct the Registrar posted at Customs, Excise and Service Tax Appellate Tribunal, New Delhi to be present before this Court on 20-8-2015 along with an affidavit explaining the circumstances and the constraints in commissioning the functioning of the Bench at Allahabad.

This Court by an order dated 12-5-2015 in Writ Petition (Tax) No. 354 of 2015 had directed that fresh filing of Custom and Excise Appeals, etc., should be done at Allahabad from 1-7-2015. The Court has been informed that this exercise has not yet as yet started. No explanation has been furnished by the Registrar, Customs, Excise and Service Tax Appellate Tribunal and noncompliance of the order of the Court without any justifiable reason amounts to contempt of the orders of the Court.

We, accordingly, direct the Registrar, Customs, Excise and Service Tax Appellate Tribunal, New Delhi to issue necessary orders on this aspect on the filing of fresh matters at Allahabad on or before the next date of listing or explain the circumstances for not doing so.

This Court by order dated 31-7-2015 further directed the Registrar, Customs, Excise and Service Tax Appellate Tribunal, New Delhi to ensure that the Customs, Excise and Service Tax Appellate Tribunal, Allahabad would sit for the time being at least for a week in a month. Necessary orders in this regard should be passed and provided to the Court on before the next date.

A certified copy of this order be made available to the District Magistrate, Allahabad within 24 hours through Sri U.K. Pandey, the learned Standing Counsel free of cost. A certified copy of this order be also made available to Sri R.C. Shukla, the learned Standing Counsel for the Excise Department and Sri Ashok Kumar, the learned Standing Counsel for the Income Tax Department free of cost, who will intimate their Commissioner with regard to the orders passed by the Court within 24 hours.

Sri R.C. Shukla will also intimate the Registrar CESTAT about this order. List on 20-8-2015.