TaxTMI 
TaxTMI 
2010 (3) TMI 475
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....udge of this court and stay was granted on condition that the writ petitioners-respondents would deposit the entire amount of the anti dumping duty so assessed by the customs authorities and the same should be kept deposited with the learned Advocate on Record for the Central Government. The writ petition thereafter was heard by the learned Single Judge, and it resulted in dismissal on 29th January, 2002. The writ petitioners-respondents preferred appeal against the order of dismissal and while admitting the appeal, the Division Bench of this Court presided over by Samaresh Banerjea, J [ as His Lordship then was ] and P. N. Sinha, J [ as His Lordship then was ] passed an interim order dated 17th May, 2002 directing the appellant to make payment of the entire anti dumping duty to the respondents with the rider that in the event the writ petitioners succeeded, the entire amount, so paid, should be refunded with interest at the rate prevailing in the bank. In terms of the said two interim orders the writ petitioner/respondent deposited a sum of Rs.42,77,418/-. Ultimately, the said appeal was allowed by the Division Bench of this court and the order of the learned Single Judge was set ....
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.... clear that the said Commissioner has not assigned any reason as to why the interest at the aforesaid rate has been awarded though writ petitioner/respondent claimed @ 16% per annum. No material is to be found for discussion nor relied on. According to us this is not the lawful decision making process in terms of the order of Justice Pal. Unfortunately, the learned Trial Judge has failed to take note of the same. The learned Trial Judge also overlooked that this decision is reached without any material or evidence whatsoever as to rate of interest, so much so, it suffers from perversity. The matter could have been ended here passing appropriate order. 8. But this cannot be resorted to immediately unless we consider fundamentally legal point raised by Mr. Roy Chowdhury appearing for the appellant. He argued that the Division Bench while admitting the earlier appeal presided over by Justice Samaresh Banerjea (as His Lordship then was) passed interim order providing for refund of interest at the prevailing bank rate. This order is without jurisdiction as no Court can pass order contrary to the provisions of the statute inasmuch as Section 27A of the Customs Act, 1962 provides for int....
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....f law. In support of his argument he has cited decision of the Hon'ble Supreme Court reported in AIR 1969 SC 823 Official Trustee, West Bengal & Ors. Appellants vs.Sachindra Nath Chatterjee & Anr. Respondents. The ratio laid down in the said Supreme Court judgment cannot be disputed but it cannot have application in each and every case as in that case the Supreme Court found the Court ignoring the express prohibition of the trust deed passed order of sale of trust property and in that context it was held the Court lacks jurisdiction with regard to the subject matter while passing order of sale. We are of the view in this case while overruling the argument of Mr. Roychowdhury that Assistant Commissioner did not decide the matter under the provisions of the Customs Act, he has simply carried out the solemn direction given by this Court and to our mind it was necessary to pass such direction by the Appeal Court but it was not done so perhaps for the reason that at the time of disposal of the appeal no material was available to pass consequential relief in order to grant complete relief in the Appeal. The rate of interest prevailing in the year 2002 does not appear to have been placed,....
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....ng duty to the respondents subject to the condition that in the event the writ petition succeeds, the respondents will be liable to refund such amount to the appellant with interest at the prevailing bank rate. We are informed that an interim order was granted by the Trial Court to the effect that such duty shall be paid to the learned Central Government Advocate who will keep the same in fixed deposit. We direct the said learned Central Government Advocate to pay to the respondent customs authorities such amount of duty paid to him together with interest accrued thereon. The customs authorities will be liable to refund such amount also with such interest, as aforesaid, if the writ petition succeeds." 17. From a plain reading of the aforesaid portion of the judgment and order it is crystal clear that the intention of the Court all along was to secure the revenue as such payment made in terms of the Court's order and making over of the deposited amount with interest in terms of the said order cannot be equated with the payment as mentioned in Section 27 of the Customs Act, 1962. In order to have the clear conception on this issue it is apposite to set out the relevant portion of....
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....nd the same has not been varied and/or discharged and it cannot be discharged even subsequently since the said order has been accepted by the parties finally by acting thereon. The said order was sought to be implemented in a meaningful manner by asking authority concerned to decide the matter instead of deciding by the Court itself. In our view the appellant cannot treat the Court's desire for getting this amount of interest quantified by the department as an action under the statute for this official cannot be said in the circumstances acting as an authority under the Customs Act rather an official having acted as an officer of this Court. 21. According to us, the said order was taken to the Commissioner of Appeals to impugn unsuccessfully in sheer abuse of the law. Thereafter the matter was taken to the Learned Tribunal who refused to grant any order of stay. However, the matter is pending before the Learned Tribunal. When the order is remaining subsisting and valid, and it was not questioned before the appropriate forum viz. before this Court, the said order has to be examined for implementation. Therefore, the writ petitioner/appellant has rightly brought the matter before ....