Full Judgment Text
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CASE NO.:
Special Leave Petition (civil) 15872-15873 of 2005
PETITIONER:
Commissioner of Customs & Ors.
RESPONDENT:
Vasant Maganlal Chokshi & Ors.
DATE OF JUDGMENT: 07/11/2006
BENCH:
Dr. AR. Lakshmanan & Altamas Kabir
JUDGMENT:
J U D G M E N T
With
SLP ) Nos. 16621-16632/2005
Commissioner of Customs ... Petitioner
Versus
Vijay Champaklal Chokshi & Ors. ... Respondents
And
SLP ) No. 16635/2005
Commissioner of Customs ... Petitioner
Versus
M/s.Kirit Maganlal & Co. & Ors. ... Respondents
ALTAMAS KABIR,J.
All these special leave petitions have been filed by the
Commissioner of Customs, Navrangpura, Ahmedabad. Since
all the special leave petitions arise out of the same set of facts,
they have been taken up together for consideration.
On the presumption that 78 bars of gold had been
clandestinely imported, the Revenue Department seized the
same on 16th January, 1998, and issued show cause notices to
the concerned parties as to why the said 78 gold bars, said to
be of foreign origin, should not be confiscated under Section
111 (d) of the Customs Act and also why personal penalty
should not be imposed under Section 112 (a) of the said Act.
Initially, the Commissioner of Customs, by his Order dated
10th November, 2000, ordered confiscation of the seized gold
bars. The said order was challenged before the Customs,
Excise and Gold (Control) Appellate Tribunal (CEGAT) which
by its Order dated 23rd August, 2001 set aside the order of
confiscation passed by the Commissioner on 10th November,
2000, and remanded the matter to the Commissioner for de
novo adjudication after giving the noticees a reasonable
opportunity of being heard.
In remand, the Commissioner by his Order 23rd January,
2003, came to the conclusion that out of the 78 gold bars, 70
bars had been received from genuine sources, but as far as
the remaining 8 bars of gold were concerned, the legality of
their import had not been properly explained. Consequently,
the Commissioner directed confiscation of 8 of the 78 gold
bars which had been seized.
Separate appeals were filed against the Commissioner’s
Order dated 23rd January, 2003. While the noticees filed the
appeals against the aforesaid order passed by the
Commissioner on 23rd January, 2003, directing confiscation of
the 8 bars of gold, the Department challenged the said order
directing release of the 70 bars of gold. The appeals filed by
the noticees were heard by the Customs, Excise and Service
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Tax Appellate Tribunal (CESTAT) which by its Order dated 30th
June, 2004, held that the 8 bars of gold which had been
directed to be confiscated did not bear any foreign mark and
that there was no evidence that the same had been illegally
imported. The appeals filed by the noticees were accordingly
allowed and the order of confiscation was set aside.
The aforesaid order of CESTAT dated 30th June, 2004,
was challenged by the Department by way of a Writ Petition,
being S.C.A.No. 13519/2005. The noticees also filed a Writ
Petition, being S.C.A.No. 7342/2005, before the Gujarat High
Court at Ahmedbad, inter alia, praying for release of the 78
bars of gold. By its Orders dated 24th June, 2005 and 7th July,
2005, the High Court directed the petitioners and their
authorities to release to the noticees all the 78 bars of gold.
After the High Court had directed the release of the 78
bars of gold, the appeals filed by the Department came up for
final hearing and disposal before CESTAT on 21st July, 2005.
Holding that no relief could be granted since the High Court
had already directed release of the 78 bars of gold, the
Tribunal dismissed the appeals filed by the Department.
All these special leave petitions arise out of the different
orders passed by the High Court as well as CESTAT.
Special Leave Petition ) Nos. 15872-15873/2005 have
been filed against the judgment and order dated 24th June,
2005 and 7th July, 2005 passed by the Gujarat High Court on
the Writ Application filed by the noticees directing release of
the 78 gold bars.
Special Leave Petition ) No.16621-16632/2005 have
been filed against the order passed by the Customs, Excise &
Service Tax Appellate Tribunal at Mumbai on 21st July, 2005.
The last of the three special leave petitions, being No.
16635/2005, has been filed against the judgment and order
passed by the Gujarat High Court at Ahmedabad on 7th July,
2005.
Mr.Radhakrishnan, learned senior advocate, appearing
for the petitioners, urged that the Tribunal had committed a
grave error in taking up and disposing of the appeals filed by
the noticees without at the same time disposing of the appeals
filed by the Department. It was submitted that inasmuch as
the appeals filed by the noticees had been heard
independently and direction had already been given to release
the 78 bars of gold, which order was subsequently confirmed
by the Gujarat High Court, there was no scope of passing any
other order in the appeals preferred by the Department. Mr.
Radhakrishnan submitted that the appeals filed by the
Department had been rendered infructuous since the same
had not been taken up along with the appeals preferred by the
noticees. It was urged that the said fact had been brought to
the notice of the High Court but the High Court had held that
it was no longer possible to entertain such a plea since the
pendency of the appeals filed by the Department had not been
brought to the notice of the Tribunal when the appeals filed
by the noticees were disposed of.
Mr. Radhakrishnan urged that in the interest of justice
the orders passed by the Tribunal in appeals preferred by the
noticees were required to be set aside and the Tribunal should
be directed to take up all the appeals, including the appeals
filed by the Department, together, for disposal.
The aforesaid submissions were vehemently opposed on
behalf of the noticees and it was pointed out that the High
Court had dealt with this question in its order dated 7th July,
2005, passed in S.C.A.No.13519/2005 and had held that it
was not possible for the Tribunal on its own to link up two
cross appeals unless the said fact was brought to the notice of
the Tribunal by the concerned party. It was also observed that
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since the petitioner had failed in its duty in pointing out the
fact that the Department’s appeal was pending when the
Tribunal took the assessee’s appeal for hearing, it was no
longer open to the petitioner to turn round and to point a
finger at the Tribunal in these circumstances.
While we are able to appreciate the anxiety now being
shown by the Department, we are unable to accept Mr.
Radhakrishnan’s submission that the decision of the Tribunal,
as also of the High Court, should be set aside in order to
accommodate the Department which had failed to point out to
the Tribunal that the appeals preferred by the Department
were also pending. Such an order would unsettle matters
which have already been settled and would amount to giving
premium to the negligence of the Department especially when
the Commissioner of Customs, CESTAT and the High Court
had all held in favour of the noticees and have directed return
of all the 78 bars of gold to them. More than 8 years have
passed since the gold bars were seized and there can be no
justification for the matter to be dragged on further on account
of the laches of the Department.
There is no special feature in this case which warrants
any interference with the orders passed by the Tribunal and
the High Court and the special leave petitions are accordingly
dismissed. The Department is directed to forthwith release
all the 78 gold bars in question to the concerned respondent.