ORDER
S.K. Mohanty, J.
1. The legality of the order as in Annexure-3 passed by Customs, Excise and Gold Control Appellate Tribunal (for short Tribunal'), Calcutta directing the petitioner to pay a sum of Rs. 5 lakhs as compensation to the Opposite Party No. 1 in exercise of its powers under Section 129B(1) of the Customs Act, 1962 (for short 'the Act') and subsequent order as in Annexure-5 enhancing the compensation to Rs. 20 lakhs through amendment of the said order in exercise of power under Section 129B(2) are under challenge in this proceeding.
2. Shorn of unnecessary details, facts of the case may be stated thus :
A Thai fishing trawler belonging to Southern Marine Services Co., Bangkok (hereinafter referred to as the Thai Co.) had been chartered by Golden Hind Shipping (India), New Delhi (Opposite Party No. 1) for fishing purpose. While fishing in Indian waters it was apprehended by Commander I.N.S. Sharabh who brought it to Paradeep Port on 12-9-1980 with crew and cargo consisting of fishes prawns and shrimps. The Customs Officers seized the trawler and cargo on 2-10-1980. A proceeding for confiscation of the cargo under Section 113(a) and the trawler under Section 115(2) of the Act was initiated and ultimately the Collector, Central Excise and Customs, Bhubaneswar, by order dated 8-1-1981 (Annexure-1) ordered confiscation of both the cargo and the trawler, but gave option to the owner of the cargo to pay fine of Rs. 2 lakhs in lieu of confiscation of the cargo and owner of the trawler to pay Rs. 2 lakhs in lieu of confiscation of the trawler. The Collector allowed the Trawler and goods to leave India after paying the above fine amounts.
3. Aggrieved by above decision of the Collector, Opposite Party No. 1 (hereinafter referred to as 'Charterer') carried the matter in appeal to the Central Board of Excise & Customs who by order dated 5-9-1981 (Annexure-2) set aside the orders of confiscation of both the cargo and the trawler with the following observations :
'The movement of the trawler off the Indian Coast where she was intercepted by the Indian Naval ships could not, therefore, constitute an attempt at export either for smuggling or for purposes of attracting the penal action under Section 113(a) of the Customs Act. The orders of confiscation of the fish and trawler are not, therefore, sustainable. The Board accordingly sets aside the Collector's orders.
The question of restoring the fine collected for allowing the trawler to go from India with the catch of fish on board to the appellants so as to compensate them is, however, a different issue. The Board does not find it possible to accept this contention for disposal on the basis of the appeal filed by the appellants. It is not disputed by the appellants that they were operating under the charter with the Thai Charterers who had taken clearance of the trawler alongwith the catch of fish on Board. It should, therefore, be possible for them to arrange matters mutually with the Thai Charterers'.
4. Against the order of the Central Board, the Charterer preferred revision before the Government of India and the same was transferred to the Tribunal upon its constitution. By judgment dated 10-5-1990, the Tribunal held that since the order of confiscation of the seized goods has been set aside and the goods are not returned to the owner, the Government is under obligation to pay to the charterer market price of the seized prawns and shrimps as on the date of the order and fixed the same at Rs. 5 lakhs. The charterer had claimed Rs. 50 lakhs towards value of the trawler which was returned to the Thai Company, prayed for direction for payment of the sum of Rs. 4 lakhs which had been deposited by the Thai Company towards fine, for damages sustained by them for not being able to use the trawler for fishing purpose on account of illegal seizure, and for the expenses incurred by them in litigation. All these prayers were however disallowed by the Tribunal.
5. After the above decision, Collector, Central Excise & Customs, Bhubaneswar filed M.A. No. 236 of 1990 under Section 130(1) of the Act for reference to the High Court and the Charterer filed M.A. No. 237 of 1990 under Section 129B(2) of the Act for amendment of the order dated 10-5-1990. The Tribunal rejected M.A. No. 236/1990 on 16-12-1991 as barred by time but allowed M.A. No. 237 of 1990 on 13-12-1991 enhancing the amount of compensation payable 10 the Charterer to Rs. 20 lakhs. It is stated in the counter that against Tribunal's order dated 23-12-1991, petitioner has moved another reference application and it is pending. As to rejection of reference due to delay, we may say that the same cannot stand in the way of the petitioner in approaching this Court under Article 226; more so, when the approach is almost on the heels of rejection of the reference.
6. The aforesaid orders dated 10-5-1990 and 23-12-1991 are assailed by the Collector, Central Excise and Customs, Bhubaneswar, in this proceeding instituted on 26-2-1992.
7. Mr. Mishra for the petitioner attacked the aforesaid orders of the Tribunal on the following grounds :
(a) Rowers of the Tribunal, a statutory authority, are circumscribed by different provisions in the Act. Its powers are limited by the Act itself and there being no express provision under which the Tribunal can award compensation, it traversed beyond its powers in awarding compensation of Rs. 5 lakhs in its order dated 10-5-1990.
(b) Even accepting that the Tribunal had the authority in law to award compensation, it was not justified in law in raising the same to Rs. 20 lakhs by way of amendment as there was no mistake apparent from the record which needed rectification.
8. Learned Counsel for the Opposite Party No. 1, on the other hand, argued that the Central Board of Excise and Customs having clearly arrived at the finding that there was no justification for proceeding against the cargo under Section 113(a) and the trawler under Section 115(2) of the Act, impliedly held that the seizure was illegal. Having arrived at such a finding, it was incumbent on the Board to direct restoration of the cargo and the trawler to the proper persons and in the facts of the case, the Board though legally bound, failed to direct restoration of the cargo or its price to the charterer who un-disputedly was the owner and therefore, the Tribunal rightly exercised its power in awarding market price as compensation.
9. For proper appreciation the scheme of the Act may first be stated :
Section 113 enumerates goods which are liable to confiscation. Section 115(2) provides when a conveyance used as means of transport, shall be liable to confiscation. Section 119(1) provides when goods liable to confiscation, may be seized by the Customs authorities. Section 122 names the officers empowered to adjudge confiscation under the Act. Section 125(1) requires the officer adjudging confiscation of goods, except goods whose importation or exportation is prohibited, to give to the owner of the goods, an option to pay fine in lieu of confiscation of the same. Proviso to Sub-section (2) of Section 115 directs that the owner of the conveyance shall be given an option to pay fine in lieu of confiscation of the conveyance.
The above analysis makes it clear that customs authorities enjoy the power of seizing goods and conveyance liable to confiscation under the Act and while adjudging confiscation, a duty is cast on them to give the owners of the goods (unless the importation or exportation of the goods is prohibited) and the conveyance, the option to pay fine in lieu of their confiscation.
10. Now the provisions in the Act dealing with appeals and revision may be stated. In the original Act, Chapter-XV contained the provisions relating to 'Appeals and Revision' in Sections 128 to 131. This Chapter was substituted by the Finance (No. 2) Act, 1980 and the heading was changed from 'Appeals and Revision' to 'Appeals'. Thus by amendment, the provision relating to revision has been deleted and instead an Appellate Tribunal has been constituted for the first time.
Under Section 128 (old), any person aggrieved by any order passed under the Act (not being an order passed under Section 130) can prefer an appeal and the appellate authority shall pass such order as it thinks fit, confirming, modifying or annulling the order appealed against. Under Section 131 (old) any person aggrieved by any order passed under Section 128 could move the Central Government in revision and the latter was empowered to annul or modify the impugned order. According to Sub-section (2) of Section 131B (new) every proceeding pending before Central Government under Section 131 (old) before the date of coming into force of the amendments and any matter arising out of or connected with such proceeding and which are so pending, shall stand transferred to the Tribunal constituted under Section 129 (new).
11. In the case at hand, the Collector, Customs exercising powers under Section 122 of the Act held that the cargo and the trawler were liable to confiscation under Sections 113 and 115(2) of the Act and gave option to the respective owners to pay fine in lieu of confiscation under Sections 125(1) and 115(2) of the Act. The Board exercising powers under Section 128 (old) annulled the decision of the Collector relating to adjudgment of confiscation but refused to pass an order in favour of the charterer as regards the price of fishes etc. which had been released in favour of Thai Company on receipt of Rs. 2 lakhs as fine. Against such refusal, the charterer preferred revision before the Central Government which was pending when the new Chapter XV relating to appeals came into force and therefore stood transferred to the Tribunal, who in exercise of their appellate powers under Section 129B (new) has passed the impugned orders.
12. The moot question for determination in this proceeding is whether in the facts of the case, the Tribunal enjoyed the power to direct the petitioner to pay any compensation to the charterer towards the price of prawns, shrimps and fishes, the same having already been taken away by the Thai Company alongwith the Trawler under orders of the Collector after payment of the fine amount.
13. Section 129B of the Customs Act dealing with the powers of the Tribunal is extracted below :
129B. Orders of Appellate Tribunal. - (1) The Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passes such decision or order with such direction as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary.
(2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under Sub-section (1) and shall make such amendment if the mistake is brought to its notice by the Collector, Customs or the other party to the appeal: x x x(3) x x x(4) x x x
14. According to the learned Counsel for the petitioner, the Appellate Tribunal could not exercise any power which is not expressly included in Section 129B. In other words, he argued that the power to award compensation being not included, the orders of the Tribunal are liable to be quashed. The Tribunal has held that the powers conferred on it under Section 129B of the Customs Act are similar in nature to the powers granted to the Income Tax Appellate Tribunal under Section 254 of the Income Tax Act, and therefore, the decision of the Apex Court in Income Tax Officer, Cannanore v. M.K. Mohammad Kunhi, 71 I.T.R. 818 is applicable to the facts of the case. In the Apex Court, the question was whether the Income Tax Appellate Tribunal had the power to grant stay while exercising power under Section 254 of the Income Tax Act, 1961. It was held :
'In our opinion the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. This is particularly so when Section 220(6) deals expressly with a situation when an appeal is pending before the Appellate Assistant Commissioner, but the Act is silent in this behalf when an appeal is pending before the Appellate Tribunal. It could well be said that when Section 254 confers appellate jurisdiction, it impliedly grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution and that the statutory power carries with it the duty in proper cases to make such orders for staying proceeding as will prevent the appeal if successful from being rendered nugatory.'
15. Now the relevant portion of Section 254 may be quoted.
'254. Orders of Appellate Tribunal:
(1) The Appellate Tribunal may, after giving both the parties in the appeal an opportunity of being heard, pass such order thereon, as it thinks fit.
(1A) xx xx xx(2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the records, amend any order passed by it under Sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer.'
16. Section 220(6) of the Income Tax Act deals with a situation when an appeal is pending before the First Appellate Authority but there is no such provision when the appeal is pending before the Income Tax Appellate Tribunal. If the power to grant stay is not held to be implied in Section 254(1) of the I.T. Act then the appeal if successful would be rendered nugatory. In such premises, the Apex Court has held that the I.T. Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. Furthermore the appellate powers of the Tribunal under Section 254(1) of the Income Tax Act is wide enough as it merely states that the Tribunal shall pass such order as it thinks fit, unlike in the Customs Act where powers are specified to the effect that the Tribunal may confirm, modify or annul the decision or may refer the case back for fresh adjudication or decision. Therefore, the view expressed by the Tribunal that its powers under Section 129B of the Customs Act are similar in nature to the powers granted to Income Tax Appellate Tribunal under Section 254 of the Income Tax Act is clearly wrong.
17. In paragraph-45 of the judgment dated 10-5-1990 the Tribunal has referred to an earlier decision of the Tribunal in Oswal Spinning and Weaving Mills Ltd. v. Collector of Customs : 1989 ECR 125, and has drawn the conclusion, referring to an observation of the Supreme Court, that the Tribunal has jurisdiction to grant compensation if the goods cannot be returned. The direction of the Supreme Court in that case has been quoted. From the discussions in the said paragraph it appears that in that case the Customs authorities were not able to give back the appellants the seized goods as they were pilfered away. In such facts the Supreme Court had observed that in case the goods are not finally traceable and the liability to account for the goods is fixed in the hands of one or both of the respondents, the Tribunal would do well to examine and decide what amount of compensation in lieu of the goods should be payable to the appellants. In our view such direction of the Supreme Court in the facts of that case cannot be read as meaning that the Tribunal has jurisdiction to grant compensation if the Customs authorities were unable to give back the appellant the seized goods.
18. In paragraph 46, the Tribunal has referred to the decision of the Calcutta High Court in Union of India v. Sambhunath Karmakar - 1986 (26) E.L.T. 719: whose facts and ultimate decision are as follows : The Collector of Central Excise had first ordered confiscation of gold and gold ornaments which had been seized. Subsequently, he held that the confiscation order of seized gold was not sustainable and he ordered release of the confiscated gold. The same, however, was not returned by the authorities and the owner took up the matter to the High Court where a Single Judge directed the Union of India and its officers either to return to the petitioner equal quantity of gold seized or to pay market price of such gold on the date the order of confiscation was set aside. On appeal, a Division Bench of the Calcutta High Court, while confirming the decision of the Single Judge observed that when confiscation order is set aside by the Collector both in equity and law, status quo ante prior to passing of the confiscation order ought to be restored and on this date, Government's obligation to return the seized gold had accrued. Thus, the Calcutta High Court has simply held about the liability of the Government about which there may not be any doubt. At any rate the decision of the Calcutta High Court reported in 1986 (26) E.L.T. 719 cannot be read as meaning that the Appellate Tribunal under the Customs Act is empowered to pass order for payment of compensation/market price of the seized goods.
19. In the case at hand, the Central Government in exercise of its revisional powers under Section 131(C) could annul or modify the appellate decision of the Board and the Appellate Tribunal after transfer of the case to it could confirm, modify or annul the appellate decision or remand the case for fresh adjudication or decision under Section 129B (new). According to Chambers Dictionary, the meaning of the word 'modify' is to moderate, to determine the mode, to change the form or quality or, to alter slightly or to vary, and the meaning of the word 'annul' is to make null, to reduce to nothing or to abolish.
20. The Tribunal has, however, referred to its inherent power in passing the impugned orders which, according to it, has been done to do complete justice. As to this, it may be pointed out that the Tribunal being a creature of statute can exercise such powers only which have been conferred by the statute. And what is the scope and ambit of the statutory power have been dealt above. It is only a court of plenary jurisdiction, which the Tribunal is not, which has inherent powers. Reference in this connection may be made with profit to Section 482, Cr. P.C. which speaks about the inherent powers of the High Court. It is well settled that what the High Court can do under Section 482, Cr. P.C. cannot be done even by a court of session, to bring home which it is enough to state that though the High Court can quash a criminal proceeding in exercise of powers under Section 482, Cr. P.C. a Sessions Judge cannot. As to the award of the amount in question to do complete justice, it may be stated that the power to pass appropriate order to do complete justice inheres in the apex court of the country only, of which mention has been made in Article 142 of the Constitution. This power is not available even to High Courts, as pointed out recently by a Full Bench of this Court in Krishna Chandra v. Union of India , AIR 1992 Orissa 261 (See paragraphs 20 and 21). Because of these, we would state that the Tribunal could not have awarded the sum in question - in original or revised - either in exercise of its inherent power or with a view to do complete justice between the parties.
21. In the case at hand, Board obviously annulled the decision of the Collector exercising powers under Section 128 (old) by holding that the order of confiscation was not sustainable in law. As, however, no order was passed relating to refund of the fine amount which the Thai Company had paid in lieu of confiscation of the Cargo, the Charterer preferred revision before the Central Government which came to be transferred to the Appellate Tribunal as required by law. So, the only part of the appellate order passed by the Board, at which the Charterer can be said to be aggrieved, is relating to absence of any order about refund of fine. According to us, it would have been within the competence of the Central Government and subsequently of the Tribunal only to order for refund of fine by slightly altering the impugned judgment inasmuch as the power of these two bodies was and is confined to modification or annulment, and nothing more. In view of the meaning of the word 'modify' as noted above, a slight alteration would have been permissible, but to award market price was not permissible, according to us, as that is not a modification of the order, and definitely not annulment.
22. We would, therefore, modify the impugned orders by stating that the Central Government shall pay to the charterer the aforesaid sum of rupees two lakhs alongwith interest at the rates allowed by the Reserve bank during the intervening periods. This amount shall be refunded to the Charterer within-a period of three months from today.
23. The petition is allowed accordingly.