Judgment:
1. The Collelctor of Customs & Central Excise, Rajkot has filed these stay applications along with the appeals against the order No.S/49-286/86L + 31 appeals dated 8-11-85 of the Collector of Customs (Appeals), Bombay under which he disposed of all- the 32 sets of appeals of M/s Nisha Chemicals, Bombay allowing the same. Therefore, through the appeals against the Collector (Appeals) Order, the Collector of Customs & Central Excise, Rajkot requests the setting aside of the appellate order and restoration of the original order passed by the Asstt. Collector of Customs Kandla. Pending the hearing and decision of the appeal of the Collector of Customs & Central Excise, Rajkot, he has, through the present applications, sought stay of the order passed by the Collector of Customs (Appeals), Bombay.
2. Appearing on behalf of the appellant Collector, Shri N.K. Pattekar stated that M/s Nisha Chemicals, Bombay filed 32 Bills of Entries with the Custom House, Kandla for the clearance of electroplating brightner sodium (Saccharine) imported per s.s. Viswa Aditya. The goods were tested by the Chemical Examiner and on the basis of the test report it was held that the licences tendered by M/s Nisha Chemicals for the clearance of the aforesaid consignments, were not valid. Accordingly, the Asst. Collector of Customs, Kandla held adjudication proceedings and passed orders levying fine on the goods and penalty on the importers. Against these orders, M/s Nisha Chemicals filed appeals to the Collector (Appeals) under Section 128 of the Customs Act. The Collector allowed the appeals and set aside the orders of confiscation, levy of fines and penalty. Against this order of the Collector (Appeals), the Collector of Customs & Central Excise, Rajkot had filed the appeals along with the stay application. In reply to my query, Shri Pattekar clarified that the total amount of fines ordered to be set aside was Rs. 7.68 lakhs approximately and the total amounts of penalties similarly ordered to be set aside came to Rs. 1.20 lakhs approximately. Shri Pattekar submitted that the financial position of M/s Nisha Chemicals was not sound and if the aforesaid amounts are ordered to be refunded to them, in pursuance of the order of the Collector (Appeals), the Customs Department might find it difficult to recover the same if the appeals filed before the Tribunal by the Collector of Customs and Central Excise, Rajkot were to succeed. Shri Pattekar further added that M/s Nisha Chemicals were not a regular importer. However, in reply to my query, Shri Pattekar stated that the Department did not have any evidence regarding the financial condition of. M/s Nisha Chemicals, like their balancesheet, income tax assessment order, bank accounts etc. He, however, requested on the basis of the instructions received by him that the stay may be granted as requested by the Collector of Customs, Rajkot.
3. Shri N. Karitawala, on behalf of the Respondent, first raised a preliminary objection, drawing my attention to the appeal of the Collector filed in Form No. CA-3 and argued that this appeal was purported to have been filed under Section 129A(1) of the Customs Act.
He contended that this appeal was defective as the Collector could not come within the purview of an aggrieved person under Section 129-A(1) of the Act. In this behalf, Shri Kantawala relied on the decision of this Bench in the case of Narendra P. Umrao and Ors., 1984 (15) ELT 275). Continuing his submissions, Shri Kantawala pointed out that in his letter No. VIII/10-90/OIO/RRA/85Pt. dated 13-2-86 addressed to the Registrar of the Tribunal, the Collector of Customs & Central Excise, Rajkot had stated that he was submitting the required particulars under Rule 28 of the Customs, Excise & Gold Control Appellate Tribunal (Procedure) Rules, 1982. Shri Kantawala argued that invoking of Rule 28 by the Collector would attract the provisions of Section 129E of the Customs Act. Under this Section, the stay could be granted of, duty demanded or penalty levied as mentioned in that Section. In the case of the present applications, the Collector had prayed for stay of the order of the Collector (Appeal) under which refund of fine and penalty amounts was ordered. Therefore, Section 129-E was not attracted and the aforesaid reference of the Collector to Rule 28 would mean that the Collector did not invoke the inherent right of the Tribunal to grant the stay of any order. From this point of view also, the application for stay was invalid. Referring to para IV of the Collector's application, Shri Kantawa4a argued that this was the main reason for seeking stay. On the other hand, it had been ruled by the Tribunal that stay could be granted only in the case of undue hardship. Further, undue hardship had been defined by the orders of the Tribunal to imply only financial hardship. In the present case, there was no evidence to show that there was such a hardship in the present circumstances. The Collector's apprehension regarding the non-recovery of the refund amounts due was based on surmises and conjectures. No documents had been produced in support of his apprehensions which remained a personal opinion only. On the other hand, M/s Nisha Chemicals were a regular importer and Shri Kantawala had in his possession several Bills of Entry pertaining to periods prior and subsequent to the date of the imports to show that M/s Nisha Chemicals were a regular importer. Dr.
Kantawala further contended that M/s Nisha Chemicals had applied for the refund of the benefits flowing from the order of the Collector (Appeals) though under Section 27(3) they were not required to make such an application and such refunds should have been granted immediately by the Department. In para (iii) of the application the Collector had also made a wrong contention that stay was necessary to safeguard realisations of higher quantum of redemption fine and penalty. The Collector of Customs, Rajkot did not seek any increase in the quantum of redemption fines and penalties but he only implied the restoration of the orders passed by the Asstt. Collector of Customs, Kandla. In these circumstances, Dr. Kantawala urged that the Tribunal should direct the Collector of Customs, Rajkot to grant the refund within one week after dismissing his stay petition. He submitted that more than six months' delay had been caused and the Collector of Customs, Rajkot was indulging in further dilatory tactics.
4. Shri Pattekar contended in reply that the Collector's reference to Rule 28 was for the purpose of drawing the Tribunal's attention to the various data required in connection with the consideration of the application under Section 129-E or under the inherent powers of the Tribunal. In the present case, the stay applications had been filed invoking the inherent jurisdiction of the Tribunal to grant the order of stay against the Collector (Appeals)' order. Hence, Shri Pattekar reiterated his request for stay.
5. I have examined the contentions made by both the sides. The preliminary objection of Dr. Kantawala is that since the Collector has filed the appeals in Form CA-3 which are prescribed for filing appeals under Section 129A (1) of the Customs Act, these are not valid. It is seen that the form No. CA-3 is prescribed under Rule 6 Of the Appellate Tribunal Customs (Appeals) Rules, 1982 framed by the Central Government under Section 156(1) of the Customs Act. This form is no doubt meant for presenting an appeal under Section 129A (1). However, under these rules, no separate form is prescribed for an appeal by the Collector under Section 129-A(2). If, therefore, the Collector has made use of Form CA-3 in filing the appeals, there cannot be any objection to the Collector doing so in form No. CA-3. The forms are meant for helping the authorities in the disposal of the appeals and the applications.
These cannot be inter-pretted to act as a hindrance to such disposals.
These appeals which are otherwise valid in terms of Section 129-A(2) cannot become invalid by the use of a non-prescribed form. Therefore, I am not able to persuade myself to agree to Dr. Kantawala's view that the appeals are not legal and therefore the applications should also be treated similarly. At worst it is only a breach of the rules on account of a lacuna which can be made good by the authorities empowered to make the rules. Dr. Kantawala has also argued that the Collector has filed the stay application under Rule 28 of the Procedure Rules and therefore the applications can be treated as having been filed in terms of Section 129-E of the Customs Act. Since, however, Section 129-E does not cover the reliefs sought by the Collector, the Collector's applications are invalid. The interpretation put by Dr. Kantawala on the Collector's reference to Rule 28 is not quite correct. The stay applications whether in terms of the statutory provisions like Section 129E or in terms of the inherent power of the Tribunal are required to be filed again in proper form with appropriate verifications and affidavits. These are also governed by the appellate Tribunals Customs (Appeals) Rules, 1982. The Collector's reference to Rule 28 has, therefore, to be taken in this light and it cannot mean that the Collector seeks to invoke the Tribunal's power under Section 129-E of the Customs Act. This is very apparent when it is considered that there is no prescribed form for applications for stay of the orders of the lower authorities by the Tribunal. That leaves me with only the merits of the stay applications. The Collector's applications do not bring out any material regarding the apprehension entertained by him that if the amounts due to M/s Nisha Chemicals, Bombay under the order of the Collector (Appeals) are paid, their recovery would be in jeopardy, if the Collector of Customs, Rajkot's appeals were to succeed finally. No enquiries have been made regarding the financial status of the Respondents and no material has been placed before me in support of the Collector's apprehension. On the other hand, the respondents have contended that they are a regular importers. The amounts involved of fines and penalties are not very heavy. Therefore, considering the merits of the stay application, I find that there is no justification in the Collector of Customs, Rajkot's request for the stay of the Collector (Appeals)' order. In these circumstances, I reject all the stay applications. As regards Dr. Kantawala's request for direction of refunds within one week it may be observed that the consideration of such a request in the applications filed by the Collector is not appropriate and Dr. Kantawala should seek another remedy to achieve this end.