Heard Sri Saurabh Basu, learned counsel for the petitioner and Sri S.P. Kesharwani, learned Senior Standing Counsel for respondent nos. 1 to 5.
In Appeal No. C/365/2010-CU [DB], an interim stay application being ST/Stay No. 1983/2010 was made. On the aforesaid application, an order being Misc. Order No. C/192/10 dated 13th December, 2010 was passed wherein respondent-custom authorities were restrained from disposing of the confiscated 12 bales of Chinese Silk Yarn as per Panchnama dated 3rd October, 2007.
Thereafter another order was passed by the Customs, Excise & Service Tax Appellate Tribunal on 7th January, 2011 being Stay Order No. C/51-52/11, which reads as follows:
"There is nothing coming out from order to appreciate that absolute confiscation was desirable in this case. Condition of Section 11 does not appear to be fulfilled in strict sense. Learned Counsel submits that the appellant is ready to protect Revenue's interest offering bank guarantee to the extent of Rs. 10 lakhs in favour of Revenue before the learned Adjudicating Authority. If such a bank guarantee is furnished the authorities shall release the goods which has been confiscated. The authority shall also seek bond for provisional release of goods in question subject to outcome of the appeal. Accordingly, the appellant shall not only furnish bank guarantee but also furnish a bond to the satisfaction of the learned Adjudicating Authority for taking delivery of goods. Accordingly, Stay application is disposed off.
2. Learned counsel prays that since the appellant is ready to protect the interest of Revenue in the manner aforesaid the goods confiscated should not be disposed off. We direct, if the goods have not been disposed as on today i.e. date of passing of this order that shall not be disposed off in view of the appellant's preparedness to take delivery of goods satisfying Revenue in the manner laid down above.
(Dictated and pronounced in the Open Court.)"
According to the petitioner-appellants, they approached the Additional Commissioner of Customs for acceptance of the bank guarantee and bonds in terms of the order dated 7th January, 2011 vide letter sent by speed post on 12th February, 2011. Upto that stage, the petitioner was not informed that the seized goods have already been disposed of on 20th December, 2010. In view of the disposal of the goods as aforesaid, the bank guarantee sought to be furnished by the petitioner along with bonds was not accepted. He therefore, made another application being Application No. C/MISC/287/2011- CU before the Customs, Excise & Service Tax Appellate Tribunal for the directions, (a) the sale of the goods be declared as null and void being in violation of the order of the Tribunal dated 13th December, 2010, (b) notice be issued to the respondent-Customs Authorities to show cause as to why criminal proceedings and/or contempt proceedings be not initiated against them for violating the order of the Tribunal, (c) the department may disclose the identity of the purchaser to whom the goods have been sold and also the department may conduct an enquiry into the alleged sale, (d) department may deposit the entire sale proceeds together with an additional sum of Rs. 10,00,000/- as compensation for sale on a throwaway price and also may conduct an enquiry into further loss and damages suffered by the appellant and (e) department may pass such orders or directions as the Tribunal may deem fit and proper. Although copy of the application is not enclosed along with the present writ petition, however, learned counsel for the petitioner has produced a photo copy of same before this Court, which is taken on record.
This application of the petitioner was disposed of vide Misc. Order No. C/128/2011-CU DB dated 22nd June, 2011 and the Tribunal has proceeded to modify its interim order dated 7th June, 2011 to the extent that the petitioner will not be required to furnish any bank guarantee and or bond, till the outcome of the appeal. The pre-deposit of the penalty imposed on the appellant has been waived till the disposal of the appeal. The Tribunal has further observed that since the goods have already been sold, the matters need to be disposed of at the earliest i.e. out of turn. It is against this order that the present writ petition has been filed.
Along with supplementary affidavit, order passed by the Customs, Excise & Service Tax Appellate Tribunal dated 5th July, 2011 passed in Custom Appeal No. 365 and 391 of 2010 has been brought on record. The appeal itself has been finally decided and the matter has been remanded to the adjudicating authority to decide the issue of jurisdiction as well as other issues. It has been further recorded that In case the adjudicating authority is found to have no jurisdiction, the Revenue is at liberty to issue fresh notice in accordance with law and decide the matter.
So far as the final order is concerned, there is no challenge to the same in present writ proceedings.
It is settled law that all the interim orders merge in the final order and therefore, whatever may have been the cause for the petitioner to approach this Court by means of the present writ petition stands merged in final order.
At this stage, learned counsel for the petitioner submits that the Hon'ble Supreme Court of India in the case of All Bengal Excise Licensees' Association vs. Raghabendra Singh & others reported in (2007) 11 SCC 374 has held that proceedings for contempt can still be initiated for violation of interim order and direction can be issued for restoring the status quo ante by the competent Court as per the interim order, even if the proceedings have been finally adjudicated. Learned counsel for the petitioner has also placed reliance upon the judgement of the Hon'ble Supreme Court of India in the case of S.K. Sarkar, Member Board of Revenue, U.P. Lucknow vs. Vinay Chandra Mishra reported in (1981) 1 SCC 436 for contending that since the Customs, Excise & Service Tax Appellate Tribunal is a court "subordinate to the Hon'ble High Court" within the contemplation of Section 10 Contempt of Courts Act, 1971 and further since this High Court under Article 227 of the Constitution of India exercises the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such Tribunals would answer the description of Court "subordinate to the High Court" within the meaning of Section 10 of the Contempt of Courts Act, 1971.
What has been argued before this Court is that the High Court may treat the present petition as a petition for contempt and to proceed against the officers responsible for sale of seized goods despite there being an interim order of the Customs, Excise & Service Tax Appellate Tribunal. It is in this background that the prayer has been made for quashing of the order dated 22nd June, 2011 as well as for a direction upon the respondents to set aside the alleged sale of the confiscated 12 bales of Chinese Silk Yarn.
This Court may record that writ is not the remedy for initiating the contempt proceedings, if the petitioner has any grievance in the matter of contempt having being committed by the Customs Authorities in violation of the interim order passed by sale of the confiscated 12 bales of Chinese Silk Yarn, he must take recourse to the Contempt of Courts Act and to file such application either before the Competent Court hearing Civil Contempt petitions or before the Court hearing Criminal Contempt petitions as may be advised in accordance with the Rules of High Court. A writ petition cannot be treated as an application for initiating contempt proceedings. It is held that the contention raised on behalf of the petitioner that the present writ petition be treated to be an application for contempt for initiating of contempt proceedings against the officers of the customs authorities has to be rejected out right.
Even otherwise, this Court may record that from the application, which has been disposed of under the order impugned, it is apparently clear that the petitioner himself has assessed the loss caused to him because of sale of the confiscated 12 bales of Chinese Silk Yarn in defiance of the orders of the Tribunal at Rs. 10,00,000/- (ten lacs rupees only) as would be clear from prayer no. (d) of the application filed before the Tribunal. The Court further finds that under the order impugned, the Tribunal has recorded a categorical finding that on the date the order dated 7th January, 2011 was passed, the goods had already been sold to be precise on 20th December, 2010. So far as the order dated 13th December, 2010 is concerned, it has been recorded that the order had not been communicated to the officers concerned, who had disposed of the seized goods on 20th December, 2010.
Learned counsel for the respondents has rightly pointed out that no further observations are required to be made by this Court in the present writ petition, inasmuch as if the petitioner feels dissatisfied with the order impugned in the present writ petition, he has the remedy to file an appeal under Section 130 of Customs Act, 1962 before the High Court itself.
The present writ petition is dismissed subject to the observations made above.
(Arun Tandon, J.) Order Date :- 19.9.2011 Sushil/-
Case :- WRIT TAX No. - 1373 of 2011 Petitioner :- M/S L.G.W. Limited Respondent :- The Union Of India And Others Petitioner Counsel :- Saurabh Basu Respondent Counsel :- S.P. Kesarwani, Senior Sc Hon'ble Arun Tandon,J.
Dismissed.
For order, see order of date passed on the separate sheets.
(Arun Tandon, J.) Order Date :- 19.9.2011 Sushil/-