Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Customs vs Dujodwala Industries on 22 January, 2003
Equivalent citations: 2003(153)ELT359(TRI-MUMBAI)
ORDER
C. Satapathy, Member (T).
1. This is an appeal filed by the Department against the order in appeal dated 11-4-1997 passed by the Commissioner of Customs (Appeals) Mumbai. The operative portion of the order-in-appeal reads as follows :
"On going through the facts of the case I hold that the Detention order has been issued in haste, resulting in needless paper work. It is laudable to recover revenue but to violate norms to recover the same ends in a futile exercise.
For the recovery of the interest due, it would be appropriate for the lower authority to issue a Show Cause Notice and thereafter proceeding with the passing of the order. The detention order is a premature step and I, therefore, do not uphold the same but remand the case back to the lower authority to reconsider the amount payable to the Govt. and after complying with the Principles of Natural Justice act thereon.
Appeal is accepted and decided by way of remand."
Against the aforesaid order the Departmental appeal has been filed in which the following grounds of appeal have been taken:-
"The Order-in-Appeal passed by the Commissioner (Appeals) is not proper and correct for following reasons :-
As per the directions of the Apex Court vide its order dated 17-7-85, importing firm was required to pay interest apart from 50% of the duty demanded. However, interest was not paid by the importers, though duty amount was paid. Importers can not show part compliance and refuse part compliance with the Apex Court's order. In the final order of Apex Court also, there is no direction from the court to waive the interest. In the circumstances interest is recoverable. Since the interest was not paid, the action for recovery u/s 142 of Customs Act, 1962 was fully justified.
There was no appeal available to the importers at this stage. In so far as observance of principles of natural justice is concerned, it is not the case that department had straight away issued detention order to recover the interest amount. In fact, department had sent several letters to the importing firm requesting to pay up the interest amount at the earliest, and considerable amount of communication between the department and importers had taken place and importers were given sufficient opportunity to put up their case. However, since detention order was issued to ensure the consequential recovery arising out of Apex Court's order, issue of Show Cause Notice and personal hearing were highly uncalled for as it would have amounted to the repetition of whole judicial proceedings again. The question of non-observance of principles of natural justice therefore did not arise at all."
2. The matter was initially heard on 25-10-2002 and was then adjourned to 20-11-2002 to enable filing of a copy of the relevant order of the Apex Court.
3. Shri S.N. Kantawala, learned Advocate for the respondent expressed his inability to file a copy of the relevant order of the Apex Court passed on the appellants' own SLP. However, Shri Ishwar Singh, learned J.D.R. for the Department has since filed a copy of the same. It is clear that the appellants were required to pay the interest amount in terms of the specific directions of the Apex Court. They have been repeatedly asked to pay the amount and on their failure to do so, the Department had issued the detention notice. The detention notice has been issued under Section 142 of the Customs Act, 1962 which does not require issue of any Show Cause Notice before initiating recovery action under the said Section. The Commissioner (Appeals)' directions to issue a Show Cause Notice and to pass an order are not based on any provision of law. Moreover, when the Apex Court has directed payment of the interest amount, it is not understood what further order is required to be passed by the lower authorities. The Commissioner has clearly mis-directed herself in entertaining an appeal against the detention order issued under Section 142 of the Customs Act, 1962 particularly in a case where the amount is payable under orders of the Apex Court, which the appellants appear to have deliberately disobeyed. She is also clearly in error in holding the issue of the detention order to be in haste and resulting in needless paper work.
4. In view of the foregoing, we set aside the impugned order in appeal and allow the appeal filed by the Department. The Departmental authorities are at liberty to take all necessary steps to secure implementation of the Apex Court's order.