1983 (7) TMI 303 - AT - Customs

Collector's Order Deemed Appealable; Tribunal Authorized to Grant Stay to Prevent Sale of Goods

The Collector's order dated 24-9-1982 was deemed an effective adjudicating order appealable to the Tribunal. The Tribunal was authorized to entertain the ... - Issues Involved:1. Whether there was an effective order of the Collector as distinct from an order of a lower authority which could be a cause of action to justify the application for stay.2. Whether the Tribunal could entertain such an application and grant the stay.Issue-wise Detailed Analysis:Issue 1: Effective Order of the CollectorThe primary question was whether the Collector's order dated 24-9-1982 was an effective order against which an appeal could lie to the Tribunal. The appellants had warehoused three consignments of machinery parts and sought extensions for the warehousing periods. The Collector allowed phased clearance of goods but later enforced a demand notice under Section 72 of the Customs Act due to non-compliance by the appellants. The appellants filed an appeal and a stay application against this order, fearing the sale of goods for duty recovery.The Tribunal was divided on whether the Collector's order was an adjudicating order or merely administrative. The learned Member (Technical) argued that the order was not in terms of sub-section (2) of Section 72 and thus, an appeal against it would not lie to the Tribunal. Conversely, the learned Judicial Member believed the order was adjudicatory, as it directed the enforcement of the demand notice, making it appealable to the Tribunal.Upon review, it was determined that the Collector's order was indeed an adjudicating order as it exercised statutory power under Section 72 of the Customs Act. The preamble and the concluding directive of the order indicated that it was intended to be appealable to the Tribunal. Therefore, it was concluded that the order dated 24-9-1982 was an effective order against which an appeal could lie to the Tribunal.Issue 2: Tribunal's Authority to Entertain the Application and Grant StayThe second issue was whether the Tribunal could entertain the stay application and grant the stay. The appellants sought a stay on the Collector's order to prevent the sale of goods until they could seek an extension of the warehousing period from the Board.The Department argued that since the goods were under Customs control, the Tribunal could not grant a stay under Section 129E of the Customs Act. However, it was noted that the Tribunal's power to grant a stay is not limited to Section 129E but includes incidental and ancillary powers as an appellate authority. This was supported by the Supreme Court judgment in the case of Income-tax Officer v. Mohammed Kunhi, which established that appellate authorities have incidental powers to grant interim relief.It was concluded that since an appeal lay to the Tribunal against the Collector's order, the Tribunal had the authority to entertain the application and grant a stay. The Tribunal could issue a stay to maintain the status quo until the appellants approached the Board for an extension of the warehousing period.Conclusion:1. The order dated 24-9-1982 of the Collector is an effective order against which an appeal lies to the Tribunal.2. Since an appeal lies to the Tribunal, it can be entertained and a stay also granted if the Tribunal deems fit.The case was referred back to the West Regional Bench to dispose of the stay application according to law. The present stay application and related appeal were deemed to be in respect of Bond No. 510, dated 24-5-1980, while the supplementary appeals and related stay applications would be disposed of separately.