TaxTMI 
TaxTMI 
2018 (4) TMI 1435
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....mplemented by the Revenue even after lapse of 13 years therefore the present misc. application by the applicant for implementation of this Tribunal dated 3-6-2005. 2. Shri. Stebin Mathew Ld. Counsel for the after the Tribunal passed the final order allowing the appeal of the applicant, Revenue filed an appeal before Hon'ble Bombay High Court however no stay was granted by the Hon'ble High Court. At the same time when the Revenue has not implemented the order of this Tribunal, the applicant also approached the Hon'ble High Court by way of writ petition No. 338/07, the same was also pending. When the applicant was advised by their advocate that the alternate remedy is available under Rule 41 of Custom, Central Excise and Service Tax Appellate Tribunal(Procedure) Rule 1982 for seeking direction for implementation of this Tribunal order, they filed an application before Hon'ble Bombay High Court with request to permit the petitioner to withdraw writ petition with liberty to approach the appellate Tribunal invoking its jurisdiction under Rule 41 of Customs, Central Excise and Service Tax Appellate Tribunal(Procedure) Rule 1982 for the relief claimed in the aforesaid writ petition. Hon'....
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....ced reliance on the Hon'ble Supreme Court case of West Coast 2004 (164) ELT 375 S.C. She also placed reliance on the following decisions: (i) Titanor Components Ltd. Vs. Commissioner of Income Tax 2009 (238) E.L.T. 596(Bom.) (ii) C Pinto Vs. Commissioner of Customs, Mumbai 2018 (9) G.S.T.L. 95 (TH.-LB) She submits that Tribunal has no power to implement its own or view of the following decisions: a. Sharad Kumar Agarwal vs. Commissioner of Customs, Mumbai reported in 2004 (166) ELT. 341 (Tri- Mumbai) b. Anant B. Timbadia & Co. vs. Commissioner of Customs, Mumbai reported in 2006 ("03) ELT, 626 (Tri- Mumbai) c. Commissioner of Customs, Ghaziabad vs. W.G. Impex reported 2015 (329) ELT. 366(Tri- Del.) d. G & S International vs. Commissioner of Customs (ICD), New Delhi reported in 2015 (321) ELT. 332 (Tri- Del.) e. Skylark Travels Pvt. Ltd. vs. Commissioner of Customs (General), Mumbai reported in 2016 (344) ELT. 593 (Tri-Mumbai) f. 3F Industries Ltd. vs. Commissioner of Customs, C. Ex & ST, Guntur reported in 2014 (310) ELT. 550 (Tri- Bang.) In view of the above, submission Ld. A. R. requested that the misc. application may be rejected. 4. We have carefully co....
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....terenate remedy in the shape of motion under Rule 41 of Cestat Procedure Rules, 1982 is available. In the facts of the present case this Tribunal has passed final order dated 3-6-2005 whereby the order-in-original was set aside and the appeal of the applicant was allowed. This application was filed by the applicant in terms of liberty granted by the Hon'ble Bombay High court vide order dated 27-2-2018 therefore there is no doubt that this Tribunal has power to entertain the present misc application. Though the Revenue has filed custom appeal before Hon'ble Bombay High Court against this Tribunal order dated 3-6-2005 but even after lapse of 13 years from the date of this Tribunal order, High court has not granted any stay to the Revenue, therefore the order of this Tribunal is enforceable. This issue is settled in Hon'ble Supreme Court decision in case of Kamalakshi Finance Corporation (Supra) wherein three judges bench of the Supreme Court have observed as under: "6. Sri Reddy is perhaps right in saying that the officers were not actuated by any mala fides in passing the impugned orders. They perhaps genuinely felt that the claim of the assessee was not tenable and that, if it wa....
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.... about implementation of the order of the Tribunal accordingly when any refund arises as a consequential relief out of the Tribunal order the Board has issued clarification vide Circular No.695/11/2003-CX dt.24.2.2003 that if the department is unable to obtain stay against Tribunal order, refund should be granted after 3 months of the order. This clearly shows that it is Board instruction to the field formation that order of the Tribunal should be implemented, if there is no stay against the said order. It is settled law by the Larger Bench of Hon'ble Supreme Court in case of Ratan Melting and Wire Industries 2008 (231) ELT 22 (SC) that the board circular are binding on the field formation. Since in the present case Revenue could not obtain any stay from the operation of this Tribunal order, there is no option left with them except the implementation of this Tribunal order dated 3-6-2005. 6. As regard the objection raised by the Ld. A. P. that jurisdiction lies with Principle Bench Delhi where the final order was passed. In this regard we referred to Public Notice 2/05 dated 5-8-2005 which is as under: CESTAT Public Notice No.2/2005 dc. 5.8.2005 "The Hon'ble President has ....