Government of India Vs. Savitru and Company - Court Judgment |
| Customs |
| Andhra Pradesh High Court |
| Jun-30-1987 |
| A Raghuvir and ;Rama Rao, JJ. |
| 1988(35)ELT33(AP) |
| Customs Act, 1962 - Sections 128A(2) |
| Government of India |
| Savitru and Company |
.....therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor.
section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the..........ground that the levy of penalty is barred by limitation. it must be stated that this ground has not been raised at any time before the hierarchy of authorities and it is also not raised in the writ petition. but, however, it is stated that a petition has been filed for raising the ground of limitation as an additional ground. this petition is not numbered and it is at the stage of sr only even now. the learned judge also is not invited to consider this aspect. therefore, we do not consider it appropriate to permit the petitioner to raise this ground at this belated stage, as it required investigation of facts. 2. in the circumstances the order of the learned singh judge is set aside. the writ appeal is allowed. no costs.
Rama Rao, J.
1. This writ appeal is concerned with the levy of duty under the Customs Act of 1962. In an appeal filed before the Board invoking the power under Section 128A(2) of the Act enhanced the penalty. The order enhancing the penalty is impugned in the writ petition. Section 128A(2) provides that the appellate authority, after giving opportunity has the power to enhance the levy of penalty. Notwithstanding this specific provision provided under Section 128A(2) of the Act, the learned Singh Judge held that the power of enhancement is not deposited in the Board by Section 128A(2) and this power of enhancement can be invoked in a situation where the department files an appeal. It must be stated that there is no provision for an appeal at the instance of the Department. This provision is analogous to the provision under the Income Tax Act where the Appellate Assistant Commissioner is invested with the power to enhance the quantum of tax or penalty, provided notice is given to the affected party. Therefore, the learned Singh Judge erred in arriving at the conclusion that the Board has no power to enhance the penalty. In this view the order is not sustainable. But, however, the learned counsel for the respondent seeks to sustain the order on the ground that the levy of penalty is barred by limitation. It must be stated that this ground has not been raised at any time before the hierarchy of authorities and it is also not raised in the writ petition. But, however, it is stated that a petition has been filed for raising the ground of limitation as an additional ground. This petition is not numbered and it is at the stage of SR only even now. The learned Judge also is not invited to consider this aspect. Therefore, we do not consider it appropriate to permit the petitioner to raise this ground at this belated stage, as it required investigation of facts.
2. In the circumstances the order of the learned Singh Judge is set aside. The writ Appeal is allowed. No costs.