Oral Order: (Ujjal Bhuyan, J.)1. This order will dispose off both the writ petitions.2. Heard Mr. Shyam Dewani, learned counsel for the petitioners and Mr. Pradeep Jetly, learned senior counsel for the respondents.3. Though facts and reliefs sought for in both the writ petitions are identical for which reason those have been heard together, for the sake of convenience, facts pleaded in Writ Petition (St.) No.97997 of 2020 are being adverted to.4. Petitioner, a company incorporated under the Companies Act, 1956, is engaged in the business of import and trading of ferrous and non-ferrous metals such as copper, nickel, aluminum, minor metals etc. Petitioner had entered into an agreement with one M/s. S. R. Enterprises (referred to as ‘the high seas buyer’) for supply of copper wire rods in the course of import of such goods. On reaching the port of entry, the high seas buyer filed bills of entry bearing Nos.6050166, 6049455 (both dated 12.12.2019) and 6089890, 6088119, 6091844, 6092308 (all dated 16.12.2019) corresponding to various bills of lading. It may be mentioned that petitioner as the importer had purchased the said goods from one M/s. Union Copper Rod LLC, Dubai but the consignments were sold to the high seas buyer while in the course of import.5. It appears that some dispute arose between the petitioner and the high seas buyer which led to cancellation of the high seas agreement. Following repudiation of the high seas agreement, petitioner filed application dated 30.12.2019 before respondent Nos.3, 4 and 5 for amendment of the bills of entry by substituting its name as the importer in place of the high seas buyer and for clearance of the consignments on payment of customs duty. However, instead of responding to the request of the petitioner, the goods were detained and subsequently seized.6. In this connection, petitioner had filed writ petition before this Court but for the purpose of adjudication of the present lis, it may not be necessary to delve into details of the previous litigation. However, we may note that while disposing off the earlier writ petition being Writ Petition No.862 of 2020 vide order dated 27.02.2020, this Court took note of the statement made by learned counsel for the petitioner that an application for provisional release of the goods under section 110A of the Customs Act, 1962 (briefly ‘the Act’ hereinafter) was filed as well as the statement of learned counsel for the respondents that such application would be decided in accordance with law within 12 weeks, subsequently corrected to two weeks.7. However, by order dated 17.03.2020, Joint Commissioner of Customs rejected the request of the petitioner for provisional release of the seized goods.8. Assailing the above order dated 17.03.2020, petitioner preferred appeal before the Commissioner of Customs (Appeals), Mumbai-II. By the order-in-appeal dated 18.09.2020, the appellate authority allowed the prayer of the petitioner to carry out amendment in the bills of entry and directed the original authority to amend the bills of entry accordingly. Original authority was also directed to take a decision on the request of the appellant (petitioner) for provisional release of the subject goods within six weeks.9. Alleging that the order of the appellate authority has not been complied with by the lower authority thereby causing serious prejudice to the petitioner, the present writ petition has been filed.10. On 22.12.2020, we had asked Mr. Mishra, learned counsel for the respondents to obtain instructions as to why the appellate order dated 18.09.2020 has not been complied with by respondent Nos.4 and 5. Subsequently, respondents have filed reply affidavit. While a major portion of the reply affidavit pertains to objection on merit, in so far the appellate order and compliance thereto is concerned, it is stated in paragraph 25 of the reply affidavit that the order of Commissioner (Appeals) has been reviewed by the Committee of Commissioners and was found to be not legal and proper. The same has been challenged before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) along with a stay application. When the matter was heard on the previous occasion, it was brought to the notice of Mr. Jetly, learned senior counsel for the respondents that the above statements made in the reply affidavit are vague to say the least.11. Today during the hearing, Mr. Jetly submits that he cannot improve upon what is already stated in the affidavit. However, he would request the Court to grant some more time to the respondents so that respondents can pursue their appeal before the CESTAT and obtain a stay.12. Mr. Dewani, learned counsel for the petitioner while criticizing such action of the subordinate authorities in not complying with the order-in-appeal of the appellate authority as being violative of administrative and judicial discipline, has furnished copies of three decisions, two of the Supreme Court and one of this Court, to highlight the contention that non-compliance of the orders passed by the appellate authority by the lower authority besides being an act of judicial indiscipline, would also lead to chaos in the administration of the laws.13. Submissions made by learned counsel for the parties have been considered.14. Considering the grievance expressed by the petitioner, it is not necessary for us to enter into the merit of the case. What is before us is an order-in-appeal dated 18.09.2020 passed by the Commissioner of Customs (Appeals), Mumbai-II. Relevant portion of the order-in-appeal dated 18.09.2020 reads as under:-“8. In view of above, I pass the following order:(i) Amendment in the impugned Bills of Entry is allowed. Original Authority / OA is directed to amend the B/Es accordingly.(ii) Original Authority / OA is directed to take decision on the request of the appellants for provisional release / conditions, if any, of provisional release of the subject goods, in consultation with Directorate of Revenue Intelligence Vapi/ seizing / investigating authority. The appellants may be heard before passing any order. Since it is a case of live consignment, OA is directed to complete the process within 6 weeks from the date of receipt of this order.9. In view of above, the impugned order contained in letter F. No.S/ 26-Misc.-1197/2019-20 Gr. IV dated 17.03.2020 passed by the Jt. Commissioner of Customs (in situ), Group- IV, JNCH, Nhava - Sheva is set aside and Appeal No.1062/2020 filed by M/s. Agsons Agencies (I) Pvt. Ltd. is disposed off in above terms.(JAGREETI SAIN NEGI)COMMISSIONER OF CUSTOMS (APPEALS)JNCH, NHAVA SHEVA, MUMBAI - II”15. As seen from the above, the appellate order is dated 18.09.2020 and we are now in February, 2021. More than four months have gone by without compliance.16. In Union of India Vs. Kamlakshi Finance Corporation Limited, 1992 Supp (1) SCC 443, Supreme Court held and reiterated that the principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not acceptable to the department, which in itself is an objectionable phrase, and is the subject matter of an appeal can be no ground for not following the appellate order unless its operation had been suspended by a competent court. If this healthy rule is not followed, the result will only be undue harassment to the assessee and chaos in administration of the tax laws.17. Following the above decision, Supreme Court again in Collector of Customs Vs. Krishna Sales (P) Ltd., 1994 Supp (3) SCC 73, once again reiterated the proposition that mere filing of an appeal does not operate as a stay or suspension of the order appealed against. It was pointed out that if the authorities were of the opinion that the goods ought not to be released pending the appeal, the straight-forward course for them is to obtain an order of stay or other appropriate direction from the Tribunal or the Supreme Court, as the case may be. Without obtaining such an order they cannot refuse to implement the order under appeal.18. In a somewhat identical matter, a Division Bench of this Court in Ganesh Benzoplast Limited Vs. Union of India, 2020 (374) ELT 552 referred to the decision of the Supreme Court in Kamlakshi Finance Corporation Limited (supra) and held that non-compliance to orders of the appellate authority by the subordinate original authority is disturbing to say the least as it strikes at the very root of administrative discipline and may have the effect of severely undermining the efficacy of the appellate remedy provided to a litigant under the statute. Principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. In the facts and circumstances of that case, respondents were directed to release the goods forthwith and without any delay.19. Adverting to the facts of the present case, all that the appellate authority has held is to allow amendment to the concerned bills of entry and thereafter has directed the original authority to take a decision on the request of the petitioner for provisional release of the goods within six weeks, which period had expired long back.20. We see no valid reason or justification for non-compliance to such order of the appellate authority. In so far the reply affidavit is concerned, all that we can say is that the statements made in paragraph 25 are devoid of any particulars : when the appellate order was received by the original aut
Please Login To View The Full Judgment!
hority; when it was placed before the Committee of Commissioners; when the Committee of Commissioners examined the order-in-appeal; when the proposal to file further appeal before the CESTAT was taken; and when the appeal before the CESTAT was filed, all these relevant dates are absent in the reply affidavit. Though this Court had taken cognizance of the grievance of the petitioner on 22.12.2020, nothing has been stated about moving the CESTAT for stay.21. In such circumstances, we direct respondent Nos.4 and 5 to carry out the order-in-appeal passed by the Commissioner of Customs (Appeals) dated 18.09.2020 within seven days from the date of receipt of a copy of this order, if necessary, by giving a hearing to the authorized representative of the petitioner.22. This order will cover the second writ petition being Writ Petition (St.) No.97994 of 2020 as well.23. Both the writ petitions are accordingly allowed to the extent indicated above. However, there shall be no order as to cost.24. All parties to act on authenticated copy of this judgment and order.