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Overseas Processors Pvt. Ltd. and Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Reported in(1985)(5)LC1592Tri(Kol.)kata
AppellantOverseas Processors Pvt. Ltd. and
RespondentCollector of Customs
Excerpt:
.....of uttar pradesh v. mukthar singh.--(1957) a.a. 505 where the hon'ble court had granted the stay after exercising its inherent power on the ground that execution or operation of the order appealed from so that the order which might be passed in appeal might not be rendered infructuous (extracts taken from code of civil procedure act v of 1908 by mulla, 14th edition) and the balance of convenience, we grant two weeks' time to the applicants to approach the revenue authorities for grant of extension of time in accordance with law if he so chooses. we further direct that during this period, the respondent shall not dispose of the goods. we would also like to observe that the applicants should have approached the revenue authorities first and should have come to this court afterwards......
Judgment:
1. The above captioned miscellaneous applications have been presented in the open court. Shri S.D. Nankani and Shri Rajiv Dutta, Advocates have appeared on behalf of the applicants. Shri S.D. Nankani, the learned advocate has pleaded that the above three appeals were presented in the Registry on 28th March, 1985 and has pleaded that these Misc. applications may be heard today, otherwise the appellant shall suffer an irreparable loss. He has also pleaded that the copies of these applications have been duly given to the learned Junior Departmental Representative.

2. We had enquired from the learned J.D.R. about the same and had asked him that if he wants time for going through the applications and in the interests of justice, the same can be granted and if he has got no objection, then the matter can be taken up right now.

3. In reply to the same the learned J.D.R. has stated in the open court that he has got no objection for the hearing of these three miscellaneous applications today. Accordingly, in the interests of justice, these miscellaneous applications are being heard and are disposed of by this consolidated order.

4. Shri S.D. Nankani, the learned advocate has referred to the last two lines of the order in original No. S.-33-80/84 Gr. I dated 24th September, 1984 in the case of Oswal Soap and Allied Industries, G.T.Road, Sherpur, Ludhiana. This is reproduced as under : "Fine and penalty as shown above shall be paid within 15 days from the date of receipt of this order, if not already paid." The learned advocate has pleaded that these two lines which have been added in the order are after thought. He has also referred to various decisions of Courts to the effect that this court has got inherent powers for the grant of interim stay and has requested that this Court should issue a direction to the effect that the respondent shall not dispose of the subject goods and that the applicants be given extension in respect till the above captioned appeals are heard or disposed of by this Court. He has referred to a letter written by the Assistant Collector of Customs for Appraising Gr. I, Custom House, Calcutta dated 2nd February, 1985 where the appellant was granted time upto 31st March, 1985 for the clearance of goods from bond under Section 49 of the Customs Act, 1962 with an observation that no part clearance on payment of partial duty, will be allowed and he has to clear the goods Bill of Entry-wise and payment of full customs duty, fine and penalty an accordance with Supreme Court's order. The learned advocate has also pleaded that the goods till date have incurred huge demurrage. He has pleaded that approximate demurrage figures appealwise are as under : He has pleaded that the above approximate demurrage figures are upto March 1985 and the amount will go on increasing. He has pleaded for the earlier fixation of appeals on priority basis.

5. In reply Shri A.K. Chatterjee, the learned J.D.R. has stated that he has got nothing to say in the matter. He leaves it to the Court to decide as it deems fit.

6. After hearing both the sides and going through the facts and circumstances of the case, we would like to observe that the matter is sub judice At this stage, we are not going into the merits of the matter. Undoubtedly this Court enjoys incidental and ancillary powers to its appellate jurisdiction It was so held by the Hon'ble Supreme Court in the case of I.T.O. v. M.K. Md. Kunhi reported in A.I.R. 1969 S.C. 430. The Hon'ble Supreme Court had referred to Domat's Civil Law, Cushing's Edition, Vol. I at page 88 and Maxwell on Interpretation of Statutes, Eleventh Edition in para 4 of its order. The relevant extract is reproduced as under : "It is the duty of the judges to apply the laws, not only to what appears to be regulated by their express dispositions but to all the cases where a just application of them may be made and which appear to be comprehended either within the consequences that may be gathered from it." "Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means as are essentially necessary to its execution. Qui jurisdictio data est ea quope concessa esse vindentur sine quibus jurisdictio explicari non potuit." An instance is given based on Ex-Parte, Martin, (1879) 4 Q.B.D, 212 at p. 491 that "where an inferior court is empowered to grant an injunction, the power of punishing disobedience to it by commitment is impliedly conveyed by the enactment, for the power would be useless if it could not be enforced." During the course of arguments we had asked the learned Counsel for the appellant whether the appellant had approached the appropriate revenue authorities for extension of time or not, to our query, the learned advocate has conceded that the appellant had not approached the proper authority but had the honest belief that the extension will not be granted. Apparently, it is abundantly clear that the applicants have not exhausted their remedy in approaching the revenue authorities for extension of time. These petitions were heard on 29th March and the last day for the clearance of the goods as per letter dated 2nd February, 1985 is 31st March, 1985. Keeping in view the judgment in the case of State of Uttar Pradesh v. Mukthar Singh.--(1957) A.A. 505 where the Hon'ble Court had granted the stay after exercising its inherent power on the ground that execution or operation of the order appealed from so that the order which might be passed in appeal might not be rendered infructuous (Extracts taken from Code of Civil Procedure Act V of 1908 by Mulla, 14th Edition) and the Balance of Convenience, we grant two weeks' time to the applicants to approach the revenue authorities for grant of extension of time in accordance with law if he so chooses. We further direct that during this period, the respondent shall not dispose of the goods. We would also like to observe that the applicants should have approached the revenue authorities first and should have come to this court afterwards. Taking into consideration the fact that huge demurrage is involved in the above three appeals, we direct the Registry to fix the above captioned three appeals for 16th May, 1985.


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