Rudra Vyaparchem Pvt. Ltd. vs Union Of Inida & Anr

The petitioner seeks provisional release of the goods pending adjudication of an appeal directed against the order in original dated November 29, 2017.

Learned Advocate appearing for the petitioner submits that, the appellate authority has no power to grant interim order. He submits that, the rules of

business of the appellate authority does not permit the petitioner to make any application for provisional release. He relies on 2010 (258) ELT 145

(Tribunal - Chennai) (Unitech Enterprises Vs. Commissioner of Customs, Chennai) in support of his contention that, the tribunal has no jurisdiction to

grant interim order of release of the goods.

He contents that, his client are ready and willing to comply with any direction that may be imposed or passed by the Court towards provisional release

of the goods. Learned Advocate appearing for the department submits that, the Tribunal is vested with necessary jurisdiction to pass interim orders

including passing an order for release in a given case. He relies upon the provisions of Rules 4, 28C and 41 of the Customs, Excise and Service Tax

Appellate Tribunal (Procedure) Rules, 1982 in support of his contentions.

I have considered the rival contentions of the parties and the materials made available on record. The petitioner had suffered an order in original dated

November 29, 2017. The petitioner had preferred an appeal therefrom before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT)

which is pending. The petitioner seeks provisional release of the goods during the pendency of the appeal.

Unitech Enterprises (supra) is an order passed by a Tribunal considering an application for grant of interim relief of release of goods. On the facts of

that case, it finds that neither the prima facie case nor the balance of convenience to be in favour for grant an order of release as prayed for by the

appellant. It notes the decision of the Madras High Court reported in 1994 (71) ELT 646 (Madras) (Collector of Customs, Madras Vs. Madras Electro

Castings Private Limited) on the power of the Tribunal to grant interim relief pending adjudication of an appeal before it. It quotes a paragraph of such

judgement in its order. Madras Electronic Castings Private Limited (supra) referred to in Unitech Enterprises (supra) is of the following view:

“Therefore, it is quite inherent in the Appellate power and more so in the case of the CEGAT to pass such interim orders as are necessary for the

purpose of ensuring that the main relief sought in the appeal is available to the party at the end of the proceeding. The fact that Section 129E only

provides for relieving the appellant from the undue hardship that would be caused to him in depositing the duty and interest as demanded or penalty as

levied, does not in any way take away the inherent power of the Appellate Tribunal to pass such interim order as are necessary. This is only re-stated

in Rule 41 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982.

Therefore, the contention of the learned counsel for the respondent/writ petitioner that there is no power vested in the Customs, Excise and Gold

(Control) Appellate Tribunal to pass an interim order directing the release of the goods, therefore, it has become necessary to approach this Court for

relief, cannot be accepted. However, the CEGAT while passing interim order, it has to bear in mind the interest of both the parties and availability of

goods if the same are to be confiscated at the end of the proceedings, unless the goods are of such nature which are subject to natural decay or

perishable, in such a case, it has to pass appropriate order for disposal.†Rule 4, 28C and 41 of the Customs, Excise and Service Tax Appellate

(Procedure) Rules 1982 are as follows:

“Rule 4. Powers of Bench. â€" (1) A Bench shall hear and determine such appeals and applications made under the Acts as the President may by

general or special order direct.

(2) Where two or more Benches are functioning at any place, the President, or in his absence the senior amongst the Vice-Presidents present, or in

their absence the seniormost Member present, may transfer an appeal or application from one Bench to another.â€​

“Rule 28C. Procedure for filing of and disposal of Miscellaneous Application â€" The provisions of the rules regarding the filing of stay applications

shall, in so far as may be, apply to the filing of applications under this rule (mutatis mutandis).â€​

“Rule 41. Orders and directions in certain cases â€" The Tribunal may make such orders or give such directions as may be necessary or expedient

to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice.â€​

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. Rule 28C prescribes the procedure for filing

and disposal of miscellaneous application. Rule 41 empowers the Tribunal to make such orders or give such directions as may be necessary or

expedient to give effect or in relation to its orders to prevent abuse of its process or to secure the ends of justice.

The Tribunal is the designated authority to hear an appeal from an order in original. It would be fallacious to suggest that, an authority which is

empowered to dispose of the appeal in its entirety would not have the authority or the jurisdiction to consider an application relating to the subject

matter of the appeal and pass interim orders with regard thereto.

The Rules of 1982 empower the Tribunal to take on board and consider and adjudicate interim applications in the appeal. Rule 41 recognises the

power of the Tribunal to pass such orders so as to prevent the abuse of its process and to secure the ends of justice. 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, I find no reason to interfere by way of a writ petition. WP No. 236 of 2018 is

disposed of This order will not prevent the parties from availing of their respective remedies before the appropriate forum in accordance with law.