ORDER
Archana Wadhwa, Member (J)
1. The miscellaneous application is filed by the Revenue with the following prayer:
6. That the Department is awaiting the final verdict of the Calcutta High Court on the matter and accordingly, your petitioner solemnly prays:
For order staying the implementation of the Hon’ble Tribunal’s Order No. M-1075/CAL/2000 dated 25.8.2000 till the Reference Application before the Hon’ble High Court, Kolkata is disposed of.
2. Shri K. Chatterjee, Id. consultant appearing for Shri Ratan Kr. Saha has strongly opposed the above prayer of the Revenue by submitting that merely because the Reference Application filed by the Revenue stands admitted by the High Court, the same cannot be made a ground for staying the Tribunal’s order, which was passed in the year 1999 read with the subsequent order passed in 2000 directing the Revenue to implement the Tribunal’s final order. He Submits that since then the period of four years have passed and the Revenue has not implemented the order inspite of the fact that there is no stay order by any appropriate judicial forum. The appellants’ contention is that he has suffered a lot on account of the non-action on the part of the Revenue in implementing the Tribunal’s order.
3. Shri Chatterjee has also drawn my attention to the various decisions of the Hon’ble Calcutta High Court as also of the Tribunal to the effect that merely because a reference application has been filed before the Hon’ble High Court or the same stands admitted by the High Court cannot be made the basis for staying the operation of the order passed by the Tribunal in favour of the appellants.
4. Countering the arguments Shri T.K. Kar, Id. SDR submits that the Tribunal has powers to stay the operation of the order and inasmuch as the reference application has been admitted by the High Court, the Tribunal’s order should be stayed till the outcome of the reference application.
5. I have considered the submissions of both the sides. By order dt. 12.11.1999 the appeal filed by the appellants was allowed with consequential relief to them. Subsequently vide miscellaneous order dt. 25.8.2000, the Revenue was directed to pay the full amount of the seizure value to the appellant instead of paying the sale proceeds of the goods seized by the Revenue. Aggrieved with the above orders, Revenue filed a reference application before the Hon’ble High Court of Calcutta which stands admitted by the Hon’ble High Court of Callcutta which stands admitted by the Hon’ble High Court with directions to the Tribunal to refer the following question of law to the Hon’ble High Court.:
Whether the injured party is entitled to payment of market value of the goods prevalent at the time of the seizure valued at by the Revenue in lieu of the goods having already sold during the pendency of the appeal.
The above order dt. 19.6.2001 directing the Tribunal to refer the above question of law to the Hon’ble High Court has not passed any orders staying the operation of the Tribunal’s order.
6. The Hon’ble High Court of Calcutta in the case of Sardar Gurcharan Singh v. CC 1992 (59) ELT 3558 (CAL) has held that mere filing of a reference application under Section 130(1) of the Customs Act, 1962 does not justify non-compliance with order of the Tribunal by the department. Similarly the Hon’ble High Court of Calcutta in the case of UOI v. Sancheti Food Products Ltd. 1993 (68) ELT 341 (CAL) has laid down that filing of reference application under Section 130(3) of the Customs Act, 1962 is not to be taken as stay of the Tribunal’s order. It is seen from para 5 of the said decision of the Hon’ble High Court that on a reference application, the High Court had issued the rule.
7. I further note that in the case of Anup Kumar v. CC, W.B. the Hon’ble High Court has observed that mere preferring a reference does not ipso facto operate as a stay order against which reference is sought for, inasmuch as the reference before High Court is only for giving an opinion on the question of law raised.
8. The Tribunal in the case of Philips India Ltd. v. CC, Mumbai , after observing that the Tribunal’s order has not been implemented inspite of passage of one year has held that mere filing of a reference application by the Revenue against the Tribunal’s final order does not act as a bar or stay against the Tribunal’s order and has accordingly directed the Commissioner to carry out the order of the tribunal within one month. Copy of the said order has also been sent by the Tribunal to the chairman, CBEC for fixing responsibility for delay in action. I also note that the Tribunal vide its order No.M-591/KOL/2002 dt. 3.7.2002 has directed the Revenue authorities to implement the Tribunal’s order inspite of their decision to file the reference application.
9. The Revenue has prayed for staying the operation of the Tribunal’s order awaiting the decision of the High Court on the reference application. Shri Chatterjee has drawn my attention to a judgment given by the Hon’ble High Court of Delhi in the case of Kailash Ribon Factory Ltd. v. CC and CE (New Delhi) wherein the Hon’ble High Court has directed the Revenue authorities to refund the total value of the seized goods along with interest, auctioned refund the total value of the seized goods along with interest, auctioned during the pendency of the appeal before Tribunal. In view of the above I do not find any justifiable reason to stay the operation the Tribunal’s order. It is also noted that the final verdict was given by the Tribunal in the year 1999 and the period of about four years has already passed causing pain and grievance to the litigant. There is no justification for further delaying the fruit of the litigation to the appellants. The goods were seized in the year 1998 and a lot of agony has already been caused to the appellant. In these circumstances I reject the miscellaneous application filed by the Revenue and direct the Revenue to implement the order of the Tribunal within a period of two months from the receipt of the order. It may be observed here that if the Revenue succeeds in reference application before the Hon’ble High Court, it is always at liberty to recover the amounts from the applicant inasmuch as no ground has been made in the application that in case the Tribunal’s order is implemented, the Revenue will not be in a position subsequently, on receipt of a favourable order from the High Court, to recover the amount from the appellant. The miscellaneous application is disposed of in above terms.
Dictated in the court.