K. Satyanarayan Subudhi Vs. Union of India (Uoi) - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - we would examine the correctness of the two stands taken by the union government in the counter affidavit as well as the stand taken by the learned senior standing counsel at the hearing of the writ application. 6. it is too well settled that the collector of central excise who was a party before the tribunal is bound by the orders passed by the said tribunal in exercise of its statutory power and if the order of the said tribunal is not assailed in any higher forum, the collector must obey and comply with the direction issued by the tribunal it is undisputed that the order of the tribunal dated 19-6-1990 as well as the order of the tribunal dated 4-8-1992 has not been assailed in any forum and, therefore, has reached its finality. bearing in mind the aforesaid parameters, let us now examine the contentions raised by the union government in its counter affidavit as well as by the learned senior standing counsel appearing for the union government in course of the hearing of the writ application. but according to the learned senior standing counsel while depositing the said amount in the challan, it was indicated that the said sum represents both the redemption fine as well as the penalty levied by the authority and, therefore, it cannot be said that the entire amount of redemption fine had been deposited by the petitioner within the stipulated period. when notwithstanding compliance with the direction, the petitioner did not get the relief in accordance with the order of the tribunal, he approached the tribunal again and brought it to the notice of the tribunal that the entire amount of redemption fine as well as the penalty levied have already been deposited and yet the excise authorities are not delivering the gold in question and at that stage from the order of the tribunal dated 4-8-1993 it appears that the collector of central excise who was represented by its j. since shri narasingh gouda was not a party in the appeal before the tribunal in which the redemption order was passed and which is the subject-matter of the present writ petition, we fail to see how said shri narasingh gouda would be a necessary party to this writ petition. we fail to see as to how the gold will be necessary to be produced in the said criminal case. 11. all the contentions raised by the opposite parties having failed, the writ petition is allowed.g.b. patnaik, j.1. the petitioner having obtained an order from the customs, excise and gold (control) appellate tribunal (for short, the 'cegat') directing the central excise authorities to return the gold seized to the extent of 250 grammes to the petitioner and yet not having been able to obtain the gold in question, has been forced to approach this court in an application under article 226 of the constitution.2. it is not necessary to traverse the entire gamut of facts leading to the order of the cegat. it will be sufficient for our purpose to notice that a confiscation proceeding was initiated in respect of 484 grammes of gold seized and the original authority directed confiscation of the said original authority, i.e. the additional collector of customs and central excise by his order dated 11-8-1988 directed confiscation of the primary gold weighing 434.900 grammes under section 71 of the gold (control) act, 1968 and also imposed a penalty of rs. 5,000/- on sri k satyanarayana subudhi (the present petitioner) and rs. 1,000/- on sri narasingha gouda under section 74 of the gold (control) act. against the said order, the petitioner carried the matter in appeal which was heard by the collector of appeals, customs and central excise. the appellate authority agreed with the order of the original authority and dismissed the appeal by order dated 19-6-1989. the petitioner carried the matter in second appeal to the cegat. the second appellate authority also came to the conclusion that the gold weighing 250 grammes (eleven pieces) should be confiscated. but it further held that instead of absolute confiscation which is not warranted in the circumstances of the case, the appellant should be permitted to redeem the same on his paying a redemption fine of rs. 25,000/ in lieu of confiscation of the said gold weighing 250 grammes and accordingly directed that the appellant should exercise this option to redeem within three months from the date of receipt of the order. it was a further stipulation that on getting the gold on redemption, the appellant should prepare ornaments out of the primary gold within one month from the date of receipt of the gold. so far as the levy of penalty is concerned, the cegat reduced the penalty to rs. 3,000/-. this order of the cegat is dated 19th june, 1990. the petitioner's case is that on reciept of the said order within three months therefrom, he deposited a sum of rs. 25,000/- on 22-11-1990 and again he deposited a sum of rs. 3,000/- on 23-11-1990 as he received the order on 22-8-1990. but notwithstanding the aforesaid deposit, as the gold was not given to the petitioner, he approached the tribunal again and the tribunal then passed an order on 4th of august, 1992, stating therein'since the appellant had already deposited the above redemption fine and penalty as per the evidence produced before us, we hereby direct the authorities to release the above said gold weighing 250 gms. within three weeks from the date of receipt of this order.'even after this order was passed by the tribunal, as the gold was not returned to the petitioner, the petitioner has approached this court.3. it is undisputed that the appellate tribunal passed the order on 19-6-1990 after hearing the collector of central excise who was a party-respondent before the tribunal and the said tribunal also passed the order on 4th of august 1992 after hearing the collector of central excise, who was being represented by shri b.b. sarkar, j.d.r. but the said collector of central excise neither assailed the legality of the order of the tribunal dated 19-6-1990 nor the order dated 4-8-1992 in any appropriate forum. therefore, the aforesaid two orders of the tribunal have become final' and legality thereof cannot be assailed.4. pursuant to the notice issued by this court, the opposite parties have filed a counter affidavit and the stand taken in the counter affidavit is that as the petitioner did not deposit the entire amount of redemption fine within the stipulated period of three months from the date of receipt of the order, the petitioner is not entitled to got the gold in question and the gold becomes the property of the union government as confiscated gold. the further stand of the opposite parties in the counter of affidavit is that the tribunal became functus officio after passing the order dated 19-6-1990 and did not retain any jurisdiction to entertain any application filed by the petitioner and to issue any direction as contained in order dated 4-8-1992 and, therefore, the direction contained in the order dated 4-8-1992 is a nullity.5. in course of hearing of the writ application, the learned senior standing counsel appearing for the union government also took an additional stand to the effect that under section 73 of the gold (control) act, whenever any confiscation is authorised under the act, the officer adjudging it may, subject to such conditions as may be specified in the order adjudging the confiscation give to the owner an option to pay in lieu of confiscation such fine not exceeding the value of the thing in respect of which the confiscation is authorised, as the said officer thinks fit and, therefore, the fine, in question should be a substitute of the value of the confiscated gold and not an imaginary one and consequently, the order levying redemption fine to the extent of rs. 25,000/- for the confiscated gold to the extent of 250 grammes is not in accordance with section 73 of the act. the learned senior standing counsel also urges that the writ application is not maintainable as shri na-rasingh gouda from whom gold was seized has not been made a party. he also urges that since a criminal proceeding is pending, the gold cannot be released in favour of the petitioner. we would examine the correctness of the two stands taken by the union government in the counter affidavit as well as the stand taken by the learned senior standing counsel at the hearing of the writ application.6. it is too well settled that the collector of central excise who was a party before the tribunal is bound by the orders passed by the said tribunal in exercise of its statutory power and if the order of the said tribunal is not assailed in any higher forum, the collector must obey and comply with the direction issued by the tribunal it is undisputed that the order of the tribunal dated 19-6-1990 as well as the order of the tribunal dated 4-8-1992 has not been assailed in any forum and, therefore, has reached its finality. bearing in mind the aforesaid parameters, let us now examine the contentions raised by the union government in its counter affidavit as well as by the learned senior standing counsel appearing for the union government in course of the hearing of the writ application.7. so far as the first contention taken in the counter affidavit is concerned, it may be noticed that while passing the order, the tribunal has directed to pay rs. 25,0007 as fine in lieu of confiscation within three months from the date of receipt of the order. the petitioner undoubtedly deposited a sum of rs. 25,000/- within three months from the date of receipt of the order. but according to the learned senior standing counsel while depositing the said amount in the challan, it was indicated that the said sum represents both the redemption fine as well as the penalty levied by the authority and, therefore, it cannot be said that the entire amount of redemption fine had been deposited by the petitioner within the stipulated period. it is also undisputed that on 23-11-1990, another sum of rs. 3,000/- has already been deposited by the petitioner with the authority and that has been accepted. in this view of the matter, when rs. 25,000/- has been deposited within three months from the date of receipt of the order of the tribunal, we find no force in the argument of the learned senior standing counsel appearing for the union government that the entire sum had not been deposited within the stipulated period. that apart, the tribunal itself by its subsequent order has accepted the stand of the petitioner that the entire amount as ordered has been deposited within the period granted by the tribunal. consequently, there has been full compliance by the petitioner of the direction given by the tribunal in its order dated 19-6-1990, and the stand of the union on that score cannot be accepted.7. so far as the second contention raised by the opposite parties in their counter affidavit is concerned, an elaborate argument was advanced that the tribunal became functus officio after passing of the order in appeal on 19-6-1990 and, therefore, it did not have any further jurisdiction to pass an order on 4-8-1992. undisputedly, under the act the tribunal had the jurisdiction to entertain a second appeal and that second appeal was rightly disposed of by the tribunal on 19th of june, 1990 with certain directions. when notwithstanding compliance with the direction, the petitioner did not get the relief in accordance with the order of the tribunal, he approached the tribunal again and brought it to the notice of the tribunal that the entire amount of redemption fine as well as the penalty levied have already been deposited and yet the excise authorities are not delivering the gold in question and at that stage from the order of the tribunal dated 4-8-1993 it appears that the collector of central excise who was represented by its j.d.r. had never raised any objection. the tribunal, therefore, rightly passed the order directing the collector to release the gold weighing 250 grammes within three weeks from the date of receipt of the order. in our considered opinion, the proposition of functus officio would not apply to the case in hand and what the tribunal has directed by its order dated 4-8-1992 is that as a fact the earlier order has been complied with and the petitioner has right to get delivery of the gold in question. we further make it clear that if at all the excise authorities were aggrieved by any such direction, they could have approached any higher forum or should have filed a writ petition, but though more than a year has passed since the order dated 4th of august, 1992, no steps have been taken to challenge the aforesaid direction of the tribunal. we, therefore, reject the second stand of the union government in its counter affidavit.8. so far as the third contention of the learned counsel for the union government is concerned, which was made in course of hearing, though not taken in the counter affidavit, it depends upon an interpretation of section 73 of the gold (control) act. on a plain reading of the said section, we are unable to accept the contention raised by mr. misra, learned senior standing counsel for the union government. under the aforesaid section, the appropriate authority has been conferred with the power to give an option to the owner to pay in lieu of confiscation such fine not exceeding the value of the thing in respect of which confiscation is authorised, as the said officer thinks fit. therefore, the quantum of fine to be levied lies with the discretion of the concerned officer, but an embargo has been put so that he cannot levy a fine of a value more than the value of the goods confiscated. at any rate, since the legality of that order has not been assailed by the union government, we need not further delve into the matter. the said contention of the learned standing counsel accordingly fails.9. so far as the contention that non-impletion of sri narasingh gouda is fatal to the writ petition is concerned, we also do not find any force in the same. the second appeal in question in which an order was passed in favour of the petitioner by the tribunal was competent and the collector of central excise was a party-respondent. since shri narasingh gouda was not a party in the appeal before the tribunal in which the redemption order was passed and which is the subject-matter of the present writ petition, we fail to see how said shri narasingh gouda would be a necessary party to this writ petition. the said contention accordingly fails.10. the only other question that survives for our consideration is whether the pendency of a criminal proceeding can at all disentitle the petitioner to receive the gold in question in accordance with the order of the appellate tribunal, a prosecution for violation of the provisions of the gold (control) act is not in any way connected with an order of confiscation of the property in question and orders passed thereon. we fail to see as to how the gold will be necessary to be produced in the said criminal case. that apart, the union government has never taken a stand before the second appellate authority, namely the tribunal and the tribunal has given positive direction in the confiscation proceeding requiring the collector of central excise to deliver the gold in question. that order of the tribunal not being challenged must be faithfully implemented by the authorities concerned and inaction on their part entities the petitioner for issurance of a mandamus from this court. in our considered opinion, pendency of the criminal proceeding would not disentitle the petitioner in getting delivery of the gold in question. the said contention accordingly fails and must be rejected.11. all the contentions raised by the opposite parties having failed, the writ petition is allowed. a writ of mandamus be issued to opposite parties 2, 3 and 4 to deliver 250 grammes of gold to the petitioner within three weeks from the date of receipt of the writ in accordance with the order of the tribunal. the writ application is allowed with costs. hearing fee is assessed at rupees five hundred.