TaxTMI 
TaxTMI 
2018 (1) TMI 500
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.... with the direction issued under clause (vii) of paragraph47 of the order-in-original dated 5th June 2015, which reads thus: "(vii) I confiscate the goods of ascertained Assessable Value of Rs. 17,89,45,942/( i.e. Rs. 17,74,67,817/for the Yacht + Rs. 14,78,125/for the 'VSAT connection with dish antenna) imported under the Bill of Entry N 911190 dated 11.09.2009 Section 111 (m) & 111(l) of the Customs Act, 1952. However, I give an option to the importer to redeem the goods on payment of redemption fine of Rs. 1,75,00,000/(Rupees One Crore Seventy Five Lakhs Only) under Section 125 of the Customs Act, 1962" It is the case of the petitioner which is not disputed that the petitioner complied with the mandatory requirement of the deposit of 7.5% of the duty and the penalty in dispute as required by section 129E of the Customs Act, 1962 (for short "the Customs Act"). The petitioner made an application before the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai (for short "Appellate Tribunal") invoking inherent jurisdiction of the Appellate Tribunal seeking stay of the direction regarding deposit of redemption fine and/or praying for dispensing with the ....
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....by the petitioner. 7.5% of the total duty and penalty demanded has already been deposited by the petitioner. Reliance was placed on the circular dated 16th September 2014 bearing No.984/08/2014CX issued by the Central Board of Excise and Customs, Government of India. Clause4 of the said circular is material. Clauses4.1 to 4.3 of the said circular read thus: "4. Recovery of the Amounts during the pendency of Appeal: 4.1 Vide Circular No.967/1/2013 dated 1st January 2013, Board has issued detailed instructions with regard to recovery of the amounts due to the Government during the pendency of stay applications or appeals with the appellate authority. This Circular would not apply to cases where appeal is filed after the enactment of the amended Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962. 4.2 No coercive measures for the recovery of balance amount i.e., the amount in excess of 7.5% of 10% deposited in terms of Section 35F of Central Excise Act. 1944 or Section 129E of Customs Act, 1962, shall be taken during the pendency of appeal where the party/ assessee shows to the jurisdictional authorities: (i) proof of payment of stipulat....
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....ceptional circumstances. In this case, nothing has been brought to our notice to show circumstances which would warrant the Tribunal exercising its inherent power to stay the order dated 30 November 2011 of the Commissioner of Customs or the redemption fine imposed therein. (underline added) 8. It is true that the said decision was rendered before section 129E was amended. The amendment was made with effect from 6th August 2014. Prior to the said amendment, the requirement of the statute was of the pre-deposit of entire amount of disputed duty as well as penalty and there was a power vested in the Appellate Tribunal to waive the requirement of the pre-deposit. According to us, the fact that this decision was rendered prior to the amendment to section 129E is immaterial as what is held by the Division Bench is that there is an inherent power vested in the Appellate Tribunal to stay the order appealed against before it. The said view taken by the Division Bench is well supported by a leading decision of the Apex Court in the case of Income-Tax Officer, Cannanore v. M.K.Mohammed Kunhi (1969) 71 ITR 815 (SC). In the said decision, the Apex Court had an occasion to consider the power....
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....of first instance before the first trial, and to the Court of Appeal before the second trial, as to the Court of last instance before the hearing of the final appeal". (underline added) The Apex Court distinguished certain decisions pointed out which held that the Appellate Tribunal does not possess any power to grant stay. Ultimately, the Apex Court proceeded to held thus: "Section 255(5) of the Act does empower the Appellate Tribunal to regulate its own procedure, but it is very doubtful if the power of stay can be spelt out from that provision. In our opinion the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. This is particularly so when section 220(6) deals expressly with a situation when an appeal is pending before the Appellate Assistant Commissioner, but the Act is silent in that behalf when an appeal is pending before the Appellate Tribunal. It could well be said that when section 254 confers appellate jurisdiction, it impliedly grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution and that the statutory power carries with it the duty in p....
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....he case of J.K.Syntehtics Ltd. v. Collector of Central Excise AIR 1996 SC 3527, the Apex Court dealt with the issue of interpretation of Rule 41. The Apex Court held that the Appellate Tribunal is clothed with express power under Rule 41 to make such order as it necessary to secure the ends of justice. In the facts of the case, it was held that the Appellate Tribunal has power to set aside the order passed ex parte against the respondent before it. 10. The learned counsel appearing for the respondent has relied upon the decision of the Apex Court in the case of Commissioner of Income-Tax, Delhi v. Bansi Dhar & Sons (1986) 157 ITR 665 (SC). In the said case, the Apex Court was dealing with the power to grant interim relief pending a reference to this Court or the Apex Court. This decision will have no application as the Apex Court observed that after making a reference, the appeal remains pending and, therefore, the Appellate Tribunal retains its jurisdiction and can grant interim relief pending the reference. 11. We have already reproduced the relevant part of the circular dated 16th September 2014. Once a compliance is made by assessee by making deposit as required under ....