Gujarat High Court
Om Prakash Kashmirilal Punjabi vs The Commissioner Of Customs ... on 8 August, 2024
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CENTRAL EXCISE & CUSTOMS GOLD CONTROL APPLICATION NO.
1 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
OM PRAKASH KASHMIRILAL PUNJABI
Versus
THE COMMISSIONER OF CUSTOMS ADJUDICATION
==========================================================
Appearance:
MR CHETAN K PANDYA(1973) for the Applicant(s) No. 1
DEEPAK N KHANCHANDANI(7781) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 08/08/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1. Heard learned advocate Mr. Chetan Pandya Page 1 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined for the applicant and learned advocate Mr. Deepak Khanchandani for the respondent.
2. This reference application is filed under section 130A of the Customs Act,1962 [for short 'the Act'] challenging the order dated 25.06.2003 passed by the Custom Excise and Service Tax Appellate Tribunal, New Delhi ['CESTAT' for short] in Appeal No. C/471-492/2000 so far as the applicant is concerned.
3. This Court passed the following order on 21.09.2007:
"Heard learned counsel for the appellant.
The CECGA is admitted in terms of the following substantial question of law.
Page 2 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined "Whether imposition of penalty on the appellant by the
Appellate Tribunal is justified?"
Issue notice to the respondent. Paper book be filed within three months. List the appeal for final hearing after three months."
4. As per section 130A of the Act, the Principal Commissioner of Custom, Commissioner of Custom or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under section 129B of the Act passed before 1st day of July,2003, by application in prescribed form, accompanied with application made by the other party by a fee, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal.
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5. As the CESTAT has passed the order on 25.06.2003 i.e. prior to 1st July,2003, applicant-one of the co-noticee has preferred this application under section 130A of the Act.
6. Sub-section (4) of section 130A of the Act provides that if on an application made under sub-section (1), the High Court directs the appellate Tribunal to refer the question of law raised in the application the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of case and refer it to the High Court.
7. In the facts of the case this Court passed the aforesaid order of admitting the Page 4 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined application on the question of law treating the same appeal under section 130 of the Act and therefore, it appears that the application has remained pending since then.
8. We, therefore, have to decide as to whether any question of law arises from the impugned order as provided under sub- section (4) of section 130A the Act as this is not an appeal under section 130 of the Act.
9. At the outset, learned advocates for both the sides have drawn our attention to the order dated 02.08.2017 passed by the Hon'ble Supreme Court of India passed in Civil Appeal No. 10347-10392/2011 preferred by the Commissioner of Customs Page 5 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined (Adjudication), Mumbai, respondent herein against M/s. R.K. International and others wherein the impugned order 25.06.2003 passed by the CESTAT was challenged. The Hon'ble Supreme Court by the aforesaid order dismissed the Civil Appeals confirming the order dated 25.06.203 as under:
"1. Heard learned counsel for the parties and perused the relevant material.
2. The appellant, Commissioner of Customs (Adjudication), Mumbai had set the law into motion by issuing a show cause notice dated 13.12.1994 alleging that in respect of consignment imported into the country under Bill of Entry No. F- 4316 there was a mis-declaration of the imported goods by the importer
- M/s. Ram Metal Industries. There were three addendas to the aforesaid show cause notice, dated 23.04.1998, 15.05.1998 and 25.08.1998 In the aforesaid show cause notice similar allegations were levelled with regard to import Page 6 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined by two other entities i.e M/s.
Natraj Metals and M/s. R.K International under Bill of Entry Nos. F4120 and 3058 dated 21.07.1993 and 04.06.1993 respectively. It was further alleged in the show cause notice st of that the importers mentioned in the Bill of Entry were mere name- lenders and not the real persons who had made the imports.
Accordingly, confiscation of the goods was proposed along with levy of penalty and the duty payable. This was notwithstanding the fact that the goods imported under Bill of Entries No. F-4120 and 3058 had been cleared and only the goods imported against Bill of Entry No. 4316 was available and accordingly seized.
3. The adjudicating authority, namely, Commissioner of Customs, on consideration of the replies to the show cause sent by the noticees and after hearing the parties, found that the show cause notice in respect of Bill of Entry Nos. F- 4120 and 3058 to be unsustainable. Insofar as the Bill of Entry No. 4316 is concerned, the adjudicating authority held one-Solly Perumal, Customs House Agent, to be responsible and made him liable for payment of penalty of Rs. 25 lakhs.Page 7 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024
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4. In appeal, the Customs, Excise and Gold (Control) Appellate Tribunal (now Customs, Excise and Service Tax Appellate Tribunal) by its impugned order dated 25.06.2003 maintained the order of the adjudicating authority insofar as the goods imported against Bill of Entry Nos F-4120 and 3058 are concerned. Insofar as the goods imported under Bill of Entry No. 4316 is concerned, the learned Tribunal found another noticee - Om Prakash Punjabi also to be liable for payment of penalty of Rs. 50 lacs. The learned Tribunal, however, reduced the penalty imposed on Solly Perumal from 25 lacs to 5 lacs. Aggrieved, the Revenue has filed this appeal upon grant of special leave under Article 136 of the Constitution.
5. At the very outset, we do not see why instead of filing an appeal before the High Court under Section 130 of the Customs Act, 1962 the Revenue has chosen to file a special leave application seeking leave to challenge the order of the learned Tribunal. The very fact that the Revenue has sought special leave to appeal against the order of the learned Tribunal would be suggestive of the fact that the Revenue concedes that the matter Page 8 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined does not involve an issue relating to rate of duty or classification of goods in which event(s) the Revenue had the option to come to this Court in a regular appeal against the order of the learned Tribunal.
6. Be that as it may, naturally, this Court would expect serious and substantial question(s) of law arising from the order of the learned Tribunal to be agitated by the Revenue before this Court. Even on this score the Revenue has failed to satisfy the Court inasmuch as the learned Tribunal, which is the last fact finding authority, in its impugned order dated 25.08.2003, has held that insofar as the Bill of Entry Nos. F-4120 and 3058 are concerned, there is lack of conclusive proof with regard to actual identification of ball bearings. Coincidentally, the case of the Revenue was/is that the imported goods were declared as lead scrap whereas the goods actually imported were ball bearings attracting a higher rate of duty.
7. The learned Tribunal in paragraph 70 of its order further held that the Revenue had failed to Page 9 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined prove the presence of ball bearings in the two consignments covered by the aforesaid two Bill of Entries. Insofar as the liability for goods imported under Bill of Entry No. 4316 in the name of M/s. Ram Metal Industries is concerned, on an similar appreciation of the evidence on record, the learned Tribunal has held that in addition to Solly Perumal, there is one Om Prakash Punjabi who also ought to be held liable. The entire findings of the learned Tribunal including the liability imposed on the aforesaid two persons, which have not been challenged by them before this Court, is on a pure appreciation of the evidence and materials on record. The learned Tribunal being the last forum for determination of questions of fact and no perversity in the appreciation of the materials being discernible from the order of the learned Tribunal, we do not see how these appeals can be scrutinized any further. Neither do we find any substantial question of law in the appeals which would require to be authoritatively answered by this Court. We, therefore, do not find the order of the learned Tribunal to be, in anyway, open to correction. Consequently, we dismiss the appeals of Revenue and Page 10 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined affirm the order dated 25.06.2003 passed by the learned Tribunal."
10. In view of the aforesaid order passed by the Hon'ble Supreme Court wherein the facts are narrated in detail, it appears that this application would not survive as the following question of law proposed by the applicant stands answered by the aforesaid Judgement and Order.
"Whether imposition of penalty on the appellant by the Appellate Tribunal is justified?"
11. As the Supreme Court has succinctly narrated the facts in brief the same are not repeated for sake of brevity.
12. Learned advocate Mr. Chetan Pandya for the applicant submitted that the impugned order passed by the CESTAT is perverse as the CESTAT has failed to take into Page 11 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined consideration the contradictory statements of Solly Perumal who is made approver by the department.
12.1 It was pointed out that there is nothing on record to show that the applicant was proprietor of either M/s. Natraj Metal or M/s. Ram Metal Industries. 12.2 The CESTAT has, after considering the evidence on record, arrived at findings of fact so far as the applicant is concerned as under:
"59. The disputes arising in these appeals are to be examined in the backdrop of facts relating to three imports at Kandla between 4.6.93 to 30.7.93. One of the main issues to be considered is whether Om Prakash Punjabi is the real importer in all the three imports. Further question to be considered is whether the goods imported under Bill of Entry dated 4.6.93 in the name of KR. K. Page 12 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined International and Bill of Entry dated 21.7.93 in the name of Natraj Metal Pvt. Ltd. contained ball bearings in the guise of lead scrap as was found in the case of import made in the name of M/s. Ram Metal Industries under 8ill of Entry dated 30.7.93 and whether import of ball bearing was made in the guise of lead scrap or attempted to be made in the guise of lead scrap with the acknowledge and connivance of the noticee officers.
60. It is the case of the Revenue that Om Prakash Punjabi who is admittedly the importer under Bill of Entry Gated 4.6.93 in the name of R. K. International was the real importer under the fictitious name M/s. Natraj Metal Pvt. Ltd. and Ram Metal Industries. The adjudicating authority was not inclined to accept the above case put forward by the Revenue. It is contended before us by the Revenue that the Commissioner has erred in the above finding. After going through the entire amount of evidence in this case we find that there are sufficient materials to connect Shri On Prakash Punjabi with the imports made in the name of fan Metal Industries and Natraj Metal Pvt.Page 13 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024
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61. It is true that the main evidence on the issue lies in the statements made by Soly Perumal. We are not inclined to accept the contention that Soly Perumal's evidence has to be rejected in toto for the reason that he head made several statements one after the other. On going through through these statements we find that they cannot be rejected en the ground of contradiction. As a matter of facts his statements are not contradictory as he is consistent in the allegations against different persons. On the other hand he comes out with sore details in the later statements referring the involvement of more persons. It is relevant to note that as regards involvement of OM Prakash Punjabi in all the three imports, reference is made by Soly Perumal in his earliest statement itself We also find that there are independent evidence to corroborate this part of the Soly Perusal's evidence.
62. In a statement given on 6.8.93 on the very day on which goods imported in the name of Kam Metal Industries were seized, Shri Soly Perumal refers to his filing Bill of Entry on 4.6.93 in the name of R.K. International on behalf of Shri Om Prakash Punjabi and to an Page 14 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined information which he received later that the consignment contained ball bearings under the guise of lead scrap. He also states that Bill of Entry dated 30.7.93 was filed in the name of M/s. Ram Metal Industries on the instruction of Shri Om Prakash Punjabi. He further states that Shri Om Prakash Punjabi was found to be filing documents in different names. In the two statements which he had given on 8.8.93 he has referred to name of Suresh Dhoka (Shresh Bhai) a close associate of Shri Om Prakash Punjabi who used to bring shipping documents on behalf of Shri Om Prakash Punjabi. Solly Perumal has stated that Om Prakhash Punjabi and sent the amount and all relevant papers such as invoice, packing list, Bill of Lading and IEC Code through his carrier which was received by Shri Kanthibhai who was waiting at Gandhidham Railway Station. In his statement dated 1.1.94 Kanthibhai has corroborated the above statement of Perumal. Thereafter the money was handed over to P.C.Chacko, an employee of Solly Perumal who got the draft for payment of Customs duty.
63. When investigation was taken up by DRI in the Matter of import in the name of Ram Metal Industries, Om Prakash Punjabi was in Bombay, Soly Page 15 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined Perumal in his statement refers to the attempt made by Om Prakash Punjabi to get in touch with him during that time. This statement is corroborated by the statement of Suresh Kumar Dhoka on 48.11.93 which would show that Om Prakash Punjabi was mankind desperate attempt to get in touch with Soly Perumal on coming to know about the investigation by DRI. Om Prakash Punjabi has admitted that Suresh Kumar Dhoka is close associate in business.
64. According to Soly Perumal on 2.9.93 Shri Om Prakash Punjabi visited at Hotel Natraj, Ahmedabad and talked with him for about 15 to 20 minutes. Om Prakash Punjabi specifically asked as to how the customs people got the information in respect of the illicit import of ball bearing and Soly Perumal was asked not to reveal his name. There was also discussion regarding seeking anticipatory bail and other legal matters. It is true that Om Prakash Punjabi denies any Connection with the consignment imported in the name of Ram Metal Industries. It is relevant to note that immediately after the seizure of the goods Om Prakash Punjabi had gone abroad and he was available for questioning only on 1.9.93.Page 16 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024
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65. We will now examine the case put forward by the Revenue connecting Shri Om Prakash Punjabi with the import in the case of M/s.
Natran Metal which is also admittedly a non-existing firm. Goods alleged to be lead scrap were imported under Bill of Entry dated 21.7.93 in the name of Natraj Metal Pvt. LTd. In this case also it was found that IEC Code Number was fictitious. The allegation of the Revenue is that it was manipulated by omitting digit 8 from TEC Code of M/s. R. K. International. IEC Code of R. K. International is omg97578The IEC Code used in respect M/s. Natraj Metal Indus is 0910027538.
66. There is ample independent evidence in this case to prove that Om Prakash Punjabi had made arrangements for payment of Customs duty in order to clear the goods imported in the name of M/s. Natraj Metal Pvt. Ltd. Shri Vv. K. Bhatt, Deputy Manager, State Bank of Bikaner & Jaipur, D. N. Market, Ahmedabad had confirmed that on 21.7.93 they had issued a demand draft No. 62061 in favour of M/s. Triniti Shipping Gandhidham for Rs. 1,53,000/and the purchaser of the aforesaid draft was Ahmedabad Page 17 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined Urban Bank Cooperative Bank Lids, Ahmedabad. The demand draft was issued against cheque of the Ahmedabad Urban Cooperative Bank Ltd. In his statement recorded under Section 1098 of the Customs Act, 1962 Shri Nanilal Jayantilal Akhani, former Manager of Ahmedabad Urban Cooperative Bank Ltd. Sarangpur Branch, Ahmedabad stated that on 21.7.93 Om Prakash Punjabi who is the Chairman of Ahmedabad Urban Cooperative Bank Lid. instructed him to issue a draft for Rs. 1,35,000/ in the name of Trinity Shipping Gandhidham. He had also stated that two persons who cane with the cash, namely, Kinhorbhai and Ashish Bhai are associated with Om Prakash Punjabi and they always used to come to thy Rank in connection with the Bank transaction of the Chairman, He had to point to Shri Om Prakash Punjabi that there are instructions from Reserve Bank not to issue drafts for large amounts against cash. There is also evidence of Kamlesh Pp, Thakkar, Apprenctice Clerk in the Ahmedabad Urban Cooperative Bank and Shri Bharat Sumanlal Jani an officer of the Ahmedabad Urban Cooperative Bank, Sarangpur Branch which would all go to prove the active part played by Om Parkash Pujabi in getting the draft in the name of Page 18 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined Triniti Shipping for the purpose of clearing the consignment in the name of N/s. Natraj Metal Pvt.
Ltd. These officers' evidence
would further show that
subsequently there had been
attempt to tamper with the records kept in the bank. The statement of Manilal Jayantilal would also show that in view of the instructions issued by Reserve Bank of India not to issue 4 draft for a large amount against cash, draft was got prepared from State Bank of Bikaner and Jaipur on the basis of cheque issued by Ahmedabad Cooperative Bank.
67. The overwhelming evidence as above connecting Om Prakash Punjabi in arranging the draft for clearing the Consignment of M/s. Natraj Metal Pvt. Lid. cannot be ignored, Apart from the above, no reason was placed before us by the learned counsel appearing on behalf of Om Prakash Punjabi to show that the above mentioned Bank Officers had any active to give statements connecting Om Prakash Punjabi with the issue of the draft.
68. We find merit in contention of the Revenue that there are conspicuous similarities between Page 19 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined the three imports. Eight items of such similarities have been referred in the earlier portion of this order (paragraph 33). It is ES relevant to note that Om Prakash Punjabi had not replied to the show cause notice which culminated in the adjudication order dated 5.1.94 confiscating the goods imported in the name of M/s. Ram Metal Industries. His conduct was one which would justify an adverse inference against him even though it was not so dealt with in the adjudication order dated 5.1.94. Taking into consideration all these facts, circumstances and the evidence adduced by the Revenue we are inclined to hold that Om Prakash Punjabi was the real importer of the consignment imported under Bill of Entry dated 30.7.93 in the name of M/s. Ram Metal Industries."
12.3 The CESTAT, however, in absence of evidence, in case of other two entities viz. M/s. R.K. International and M/s. Natraj Pvt Ltd upheld the order passed by the adjudicating authority but Page 20 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined so far as the applicant is concerned, the CESTAT levied the penalty of Rs. 50 Lakh by observing as under:
"72. We do not intend to refer each and every officer involved in this case (because that enquiry is more appropriately in the area of administration) but generally we find that there is evidence in this case to show that they were associating too closely with CHA which is inappropriate, given the nature of their duties. The then the Commissioner of Customs, Kandla who passed the adjudication order dated $.1.94 has also failed to co- ordinate the investigations of his officers with the investigations of DRI and to give a correct direction to the whole proceedings. On seizure of the consignment in the name of Ram Metal Industries, if immediate steps had been taken to follow up the movement of the goods cleared immediately before it in the name of Natraj Metals Pvt. Ltd., the result could have been different.
72. We have already entered a findings that Shri Om Prakash Page 21 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined Punjabi the real importer of the goods imported in the name of M/s. Rae Metal Industries. That was a clear case of smuggling of ball bearing in the guise of cheap lead scrap. As against the declared value of less than Rs. 2 Lakhs the assessed value is Rs. 2.4 crores. He is, therefore, Clearly liable to penal action under Section 112 of the Customs Act. Taking into account the deliberate fraud involved and the value of the smuggled goods, we impose a penalty of Rs. 5O lakhs on Shri Om Prakash Punjabi. Appeal No. C/474/2000 filed by the Revenue is allowed as above. All other appeals filed by the Revenue are dismissed."
12.4 Learned advocate Mr. Pandya referred to the above findings of the CESTAT and submitted that the CESTAT could not have imposed the penalty of Rs. 50 Lakh upon the applicant under section 112 of the Act while exercising its jurisdiction under section 129 read with section 129B of the Act. In support of his Page 22 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined submissions, reliance was placed on the decision of the Madras High Court in case of Visteon Automotive Systems India Limited vs. CESTAT, Chennai reported in 2018 (9) G.S.T.L 142 (Madras) wherein it is held as under:
"15. But unfortunately, the Tribunal has fallen into grave error in imposing penalty against the importer under Section 112(a) of the Customs Act. The inspiration was drawn by the Tribunal on the basis that the show cause notice has proposed to impose the penalty under Section 112(a) of the Act, against the importer. The Tribunal ought to be aware that it has been kept outside the scope of expression "adjudicating authority"
under sub-section (1) of Section 2 of the Act. Consequently, the Tribunal has no power to adjudicate at the first instance, any imposition of penalty leviable under the Act, either against the goods or the person concerned. If at all the adjudicating authority has omitted to take action under Section 112 of the Act against an importer, that could be for valid and tenable reasons. It could be, in the present case, for the reason that Page 23 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined the goods have been cleared for home consumption by the proper officer without proper verification. Therefore, the blame is apportionable between the importer, the appellant herein and the proper officer of the Department as well. The discretion has been properly exercised and it was not levied in the Order-in-Original. Hence, the penalty now imposed by the Tribunal under Section 112(a) of the Act is not sustainable, as any such imposition, for the first time, is part of exercise of adjudication process and the Statute has kept the Tribunal away from any such exercise.
16. The role and jurisdiction assigned to the Tribunal is specified under Section 129-B of the Act. It would be open for the Tribunal, if it thinks fit, to pass an order confirming or modifying or annulling the decision appealed against or may refer the case back to the authority with such direction as it may think fit for fresh adjudication or a decision, and hence, the power of determination or imposition of penalty on an importer under Section 112(a), is not available to the Tribunal. This jurisdictional limitation has not been borne in mind by the Tribunal while passing the impugned order. Accordingly, questions (i) and (ii) stand answered against the Revenue. Page 24 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024
NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined 12.5 Referring to the above decision, it was submitted hat as the adjudicating authority has chosen not to levy the penalty upon the applicant and the CESTAT not being the adjudicating authority as defined in section 2(1) of the Act, could not have assumed the jurisdiction to levy the penalty for the first time. It was further submitted that the CESTAT has also not given any reason for levy of penalty of Rs. 50 lakh upon the applicant by giving any opportunity to the applicant. It was also submitted that the CESTAT therefore could not have levied penalty of Rs. 50 Lakh without any basis. 12.6 Learned advocate Mr. Pandya submitted that the applicant has now, Page 25 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined after lapse of more than 20 years after filing of this application, become an aged person and he has lost his entire business having financial difficulty and considering such aspect, the penalty amount may be deleted in toto or, in alternative, it may be reduced. 12.7 With regard to aspect of merger of the order of the CESTAT with that of the Hon'ble Apex Court, it was submitted that the subject matter of the challenge before the Hon'ble Apex Court by the respondent was not with regard to levy of penalty upon the applicant but it was confirmation and upholding of the order of the adjudicating authority by CESTAT qua other co-noticees. It was therefore submitted that the order of the Hon'ble Page 26 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined Apex Court cannot be made applicable to the facts of the applicant and therefore, CESTAT may be directed to draw up a statement of the case on the question of law proposed by the applicant. 12.8 In support of his submissions, reliance was placed on the decision of the Madras High Court in case of State of Madras vs. Madurai Mills reported in 1966 SCC Online SC 140 wherein, it is held that the doctrine of merger cannot be invoked in circumstances where the subject matter of revision before the Deputy Commissioner of Commercial Tax was not the subject matter of the assessment made by the Deputy Commercial Tax Officer. 12.9 It was therefore submitted Page 27 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined that in the facts of the case, as the Hon'ble Apex Court was not considering the levy of penalty by the CESTAT upon the applicant and the aspect of levy of penalty was not the subject matter of the appeals before the Hon'ble Apex Court, this application is required to be decided independently without taking into consideration the observation made in the order passed by the Hon'ble Apex Court. 12.10 Learned advocate Mr. Pandya in support of his submissions referred to and relied upon the decision of Division Bench of this Court in case of Mercury Metals (P) Ltd vs. Assistant Commissioner of Income Tax reported in (2002) 257 ITR 294 wherein, reliance was placed on the decision of the Hon'ble Supreme Court in Page 28 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined case of Omar Salay Mohamed Sait vs. CIT reported in [1959] 37 ITR 151 and in case of Rajesh Babubhai Damania vs. CIT reported in [2001] 251 ITR 541 as under:
"8. We may recall here the decision of the Supreme Court in Omar Salay Mohamed Sait v. CIT [1959] 37 ITR 151, in which the Supreme Court succinctly expressed the expectation from a Tribunal while deciding such appeals (page 170) :
"We are aware that the Income-tax Appellate Tribunal is a fact-
finding Tribunal and if it arrives at its own conclusions of fact after due consideration of the evidence before it this court will not interfere. It is necessary, however, that every fact for and against the assessee must have been considered with due care and the Tribunal must have given its finding in a manner which would clearly indicate what were the questions which arose for determination, what was the evidence pro and contra in regard to each one of them and what were the findings reached on the evidence on record before it. The conclusions Page 29 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined reached by the Tribunal should not be coloured by any irrelevant considerations or matters of prejudice and if there are any circumstances which required to be explained by the assessee, the assessee should be given an opportunity of doing so. On no account whatever should the Tribunal base its findings on suspicions, conjectures or surmises nor should it act on no evidence at all or on improper rejection of material and relevant evidence or partly on evidence and partly on suspicions, conjectures or surmises and if it does anything of the sort, its findings, even though on questions of fact, will be liable to be set aside by this court."
9 .In Rajesh Babubhai Damania v. CIT [2001] 251 ITR 541, the Division Bench of this court observed that it was a duty of the Tribunal to ascertain the reasons which were given by the Commissioner of Income-tax (Appeals) in whose order, the order of the Assessing Officer had merged." 12.10 Learned advocate Mr. Pandya with regard to the issue of levy of Page 30 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined penalty by the CESTAT relied upon the decision of Hon'ble Supreme Court in case of Akbar Badrudin Giwani vs. Collector of Customs, Bombay reported in (1990) SCC 203:
"61. We refer in this connection the decision in Merck Spares v. Collector of Central Excise & Customs, New Delhi, [1983] ELT 1261;Shama Engine Valves Ltd. Bombay v. Collector of Customs, Bombay,[1984] 18 ELT 533 and Madhusudan Gordhandas & Co. v. Collector of Customs, Bombay, [1987] 29 ELT 904 wherein it has been held that in imposing penalty the requisite mens rea has to be established.It has also been ob- served in Hindustan Steel Ltd. v. State of Orissa, [1970]1 SCR 753 by this Court that:
"The discretion to impose a penalty must be exercised judi- cially. A penalty will ordinarily be imposed in cases where the party acts deliberately in defiance of law, or is guilty of contumacious or dishonest conduct, or acts in conscious disregard of its obligation; but not, in cases where there is a technical or venial breach of the provisions of the Act Page 31 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute."
12.11 Referring to the above decision it was submitted that in the facts of the case there is no evidence against the applicant which could have been considered appropriate for levy of penalty under section 112 of the Act. It was further submitted that the order of the CESTAT is a cryptic order and though the CESTAT is a fact-finding forum, it ought to have given the findings considering what was the evidence for and against all the applicants on record and could not have based its conclusion on irrelevant consideration or suspicions, conjunctures and surmises.
12.12 By referring to the findings Page 32 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined of the CESTAT it was submitted that the CESTAT has rejected the relevant material and has taken into consideration irrelevant material by relying upon the statements of the bank employees and has arrived at findings to the effect that the contradictory statements given by the Solly Perumal are required to be believed as there is no contradiction. 12.13 In support of his submission, reliance was placed on the decision of Shri Tribhovandas Vithaldas vs. Commissioner of Income Tax reported in [1986] 159 ITR 236 wherein it is held as under:
"12 After hearing at length the learned advocate for the assessee as well as the learned counsel for the Revenue, we, however, unfortunately Page 33 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined find ourselves unable to answer the questions. The reason for our inability is, with respect to the Tribunal, its cryptic order since it is on the finding of fact made by the Tribunal that we have to answer the question of law arising from the order of the Tribunal. It is axiomatic to say that the Income-tax Appellate Tribunal is a fact-finding forum and, therefore, it is necessary for it that every fact for and against must have been considered with due care and the Tribunal is under an obligation to give its finding so as to clearly indicate as to precisely what were the questions arising for its determination, what was the evidence for and against on the record in regard to each one of these questions and what were its findings reached and on what evidence before it. It is a trite position in law that the conclusions reached by the Tribunal should not have been based on irrelevant considerations nor on suspicion, conjectures or surmises and they should be warranted in the evidence placed before it, which evidence should be relevant, and the Tribunal should not have improperly rejected any relevant material. If the Tribunal is remiss in its obligation, its findings, even though they may be findings of fact, would be liable to be set aside by the court (See Lalchand Bhagat Ambica Ram v. CIT [1959] 37 lTR 288(SC) and Omar Page 34 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined Salay Mohamed Sait v. CIT [1959] 37 ITR 151(SC)). It is no doubt true that in order to find out as to whether the Tribunal has discharged its obligation the impugned order in question is not to be scrutinised sentence by sentence with a view to discover the minor lapses here or there, but it has to be read as a whole (See Bhaichand Amoluk Co. v. CIT [1962] 44 ITR 511(SC)). Having read and re-read the order of the Tribunal, we are of the opinion, with respect to the Tribunal, that it has not fulfilled its role as envisaged by the Supreme Court. We may, with respect to the Tribunal, point it out to bear in mind what the Supreme Court has observed per curiam in CIT v. S. P. Jain [1973] 87 ITR 370 at p.372, since this would otherwise expose the taxpayers as well as tax collectors to the vagaries of protracted litigation. As the Tribunal has failed to consider each and every fact for and against the assessee and did not give its finding in respect of the evidence which has been adduced, nor has it considered, as it ought to have, the reasoning which compelled the Appellate Assistant Commissioner to reach the findings, we think that the grievance of the assessee before us that the findings are vitiated has great force. In the circumstances, therefore, we intend to adopt the course suggested by the Supreme Court in CIT v. Indian Molasses Co. P. Ltd. [1970] 78 ITR 474 and leave the Page 35 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined questions unanswered so as to enable the Tribunal to re-hear the appeal and dispose of the same according to the correct principles of law. Reference is disposed of accordingly with no order as to costs."
13. On the other hand, learned advocate Mr. Deepak Khanchandani appearing for the respondent submitted that in view of the Judgement and Order dated 02.02.2017 passed by the Hon'ble Supreme Court in Civil Appeal filed by the respondents challenging impugned order dated 25.06.20263 passed by the CESTAT, the doctrine of merger would apply and therefore, this application is required to be rejected as no question of law can be said to have arisen from the order of the CESTAT in view of the Judgement and Order passed by the Hon'ble Supreme Court in Civil Application No. 10347-10392 of 2011. Page 36 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024
NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined 13.1 It was submitted that the CESTAT has arrived at a finding of fact being the last authority on facts, no question of law would arise from such findings of fact arrived at by the CESTAT. It was submitted that the contention raised on behalf of the applicant challenging order of the CESTAT on facts therefore are required to be rejected. Learned advocate Mr. Khanchandani referred to para 28 of the impugned order passed by the CESTAT wherein, the contention of the revenue about the similarities in the consignment of M/s. R.K.International, Natraj Metals and M/s. Ram Metal Industries are recorded as under:
"28. The credibility of Shri Solly Perumal's statements therefore creates serious doubts. It is Page 37 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined Solly's case that all the three consignments namely M/s. R.K.International, M/s. Natraj Metal Pvt. Ltd. And M/s. Ram Metal Industries, belong to Shri O.P.Punjabi. While M/s.
R.K.International consignment could, through various documents, be connected with Shri O.P.Punjabi, similar connection is not established in the other two cases. If Shri Solly Perumal were to be believed to be telling the truth then, having successfully handled the clearance of a consignment imported in the name of M/s. R.K.International (with allegedly contained Ball bearings) for his own safety he would have visited on similar documentary nexus with Shri O.P.Punjabi in respect of other two documents received by him, for arranging clearance. After all, even after exposing the connection of the documents with Shri Punjabi the plan of smuggling was successful. [If Shri Solly Perumal is to be believed] And there was really no need for anyone to conceal the identity of the importer. Instead, for other consignments, fictitious importers are created. Where was the need to create such suspicious importers? DRI also did not deem it necessary to question Solly on this aspect? If to avoid detection was the real purpose then Punjabi would have taken precaution right at the Page 38 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined time of the first consignment and made import in the name which would not get connected to him. Shri Solly Perumal also asks his staff to stamp the Bills of Entry as "Self" and one employee is asked to sign the documents in a pseudonym and then he handles the document for its clearance. In cae the documents were to belong to Punjabi, he would have followed the same set of procedure, as was done in the case of M/s.
R.K.International. Why should
Punjabi change the mode of
documentation for subsequent
consignments when the first
consignment could be cleared
successfully. In these circumstances it is difficult to understand as to why DRI believed that any other person besides Shri Solly Perumal is involved in the importaion of Consignment in the name of M/s. Natraj Metal Pvt. Ltd and M/s. Ram Metal Industries. DRI ought to have made appropriate investigation and ruled out this possibility, before accepting Solly's version. Instead Solly's version has been accepted and investigation shifted from Solly to others named by Solly."
13.2 Referring to the above findings of the CESTAT, it was submitted that the CESTAT has rightly held that the Page 39 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined statements of Solly Perumal and his evidences cannot be rejected on the ground of contradiction.
13.3 It was further submitted that when the CESTAT considered the similarities shown in the transaction of import of lead scrap by the three entities but the import was made of the ball bearing and involvement of the applicant who has chosen not to respond to the show cause notices issued by upon him, no interference is required to be made in the impugned order of the CESTAT for levy of the penalty upon the applicant. 13.4 It was submitted that the CESTAT, in para 72 of the impugned order, has considered the ingredients of section Page 40 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined 112 by referring to the value of the declared value and the assessed value and thereafter exercised the discretion of levy of penalty of Rs. 50 lakh which does not require any interference as no question of law can be said to have arisen from the impugned order of the CESTAT.
14. Having heard learned advocates for the respective parties and considering the Judgement and Order dated 02.08.2017 passed by the Hon'ble Apex Court in Civil Appeal No. 10347-10392/2011 which is reproduced here-in-above, the question we are left with to consider is whether the impugned order of the CESTAT dated 25.06.2003 which was Challenged before the Hon'ble Supreme Court can be said to have merged in the said Judgement and Order or Page 41 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined not? The Hon'ble Apex Court in case of Khunayamahmed vs. State of Kerala reported in (2000) 6 SCC 359 has considered the issue of doctrine of merger regarding the decision of the Kerala High Court in Special Leave to Appeal under Article 136 of the Constitution of India as under:
"41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non- speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss Page 42 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.
42. "To merge" means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum, Vol. LVII, pp. 1067-1068).
43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over Page 43 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage.
To sum up our conclusions are :-
(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
ii) The jurisdiction conferred
by Article 136 of the
Constitution is divisible into two stages. First stage is upto the disposal of prayer for special leave to file an appeal.
The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.
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NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined
(ii) Doctrine of merger is not a doctrine of universal or unlimite application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it.
Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.
iv) An order refusing special leave to appeal may be a non- speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal Page 45 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the apex court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition Page 46 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi) Once leave to appeal has been
granted and appellate
jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation."
15. Considering the above dictum of law we are of the opinion that the impugned order of the CESTAT has merged into the order of Judgement and Order passed by the Apex Court under Article 136 of the Constitution of India.
16. In view of the applicability of doctrine of merger, we are not inclined to consider the impugned order of the CESTAT on merits Page 47 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024 NEUTRAL CITATION C/CECGA/1/2005 JUDGMENT DATED: 08/08/2024 undefined vis-a-vis contention raised by learned advocate for the applicant on the ground of perversity of the impugned order or the jurisdiction of the CESTAT to levy the penalty under section 112 or the legitimacy of discretion exercised by the CESTAT for levy of penalty of Rs. 50 lakh upon applicant.
17. In view of the above foregoing reasons, we are of the opinion that no question of law arises from the impugned order of the CESTAT and therefore the application stands dismissed. No order as to costs.
(BHARGAV D. KARIA, J) (NIRAL R. MEHTA,J) JYOTI V. JANI Page 48 of 48 Uploaded by JYOTI V. JANI(HC00213) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:23:22 IST 2024