Custom Appeal No. 16 of 2012. Case: Neeraj Jhanji Vs Commissioner of Customs and Central Excise. High Court of Allahabad (India)
| Case Number | Custom Appeal No. 16 of 2012 |
| Counsel | For Appellant: Shambhu Chopra, Adv. And For Respondents: S.P. Kesarwani and Sr. S.C. |
| Judges | Sunil Ambwani and A.N. Mittal, JJ. |
| Issue | Constitution of India - Articles 226, 227; Customs Act, 1962 - Sections 113, 114(III), 130(I); Limitation Act, 1963 (36 of 1963) - Sections 14, 5; Special Court (Trial of offences Relating to Trnsactions in Securities) Act, 1992 - Section 3(2) |
| Judgement Date | August 06, 2012 |
| Court | High Court of Allahabad (India) |
Judgment:
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We have heard Shri Shambhu Chopra, learned counsel appearing for the appellant. Shri S.P. Kesarwani, Additional Chief Standing Counsel, Central Excise, Customs and Service Tax Department, Government of India, High Court Allahabad appears for the Commissioner of Customs and Central Excise. This appeal under Section 130(I) of the Customs Act, 1962 is directed against the order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), New Delhi dated 17.8.2009 passed in Appeal No. C/379/2006 Q 92/09, upholding the penalty of Rs. 10 lacs against appellant for violation of Section 114(III) read with Section 113 of the Customs Act.
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The registry has reported the appeal to be beyond time by 697. days, and has thus reported it to be defective.
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The appellant has filed delay condonation application for condoning the delay in filing the appeal and for taking benefit of Section 14 of the Limitation Act. In the affidavit of Shri Neeraj Kumar accompanying the delay condonation application it is stated that the appellant had filed a writ petition against CESTAT order in the Delhi High Court, which was numbered as Writ Petition (Civil) No. 12992 of 2009 through his lawyers Shri R.K. Handoo & Associates, New Delhi on 23.10.2009. The writ petition was heard by the Division Bench of Delhi High Court on 9.11.2009. The Bench permitted the deponent to convert the writ petition into appeal. On the same day on 7th April, 2010 before the writ petition was converted into appeal, the Delhi High Court passed an interim order as follows:
9.11.2009
Present: Mr. R.K. Handoo, Advocate with Mr. Manish Shukla and Mr. Aditya Chaudhary, Advocate for the petitioner.
Mr. Mukesh Anand, Advocate with Mr. Sumit Batra and Mr. Shailesh Tiwari, Advocates for the respondent.
CM 13918 of 2009 (Exemption)
Allowed subject to all just exceptions.
CM is disposed of.
W.P. (C) 12992 of 2009
Since statutory appeal is preferred against the impugned order, which lies in this Court, on oral prayer made by learned counsel for the petitioner this writ petition is concerted into appeal. The Registry shall allot appropriate appeal number.
Notice.
Mr. Mukesh Anand, Advocate learned counsel for the respondent accepts notice.
List on 7th April, 2010.
CM 13917 of 2009 (Stay)
Notice.
Mr. Mukesh Anand, Advocate "learned counsel for the respondent accepts notice.
Reply be filed within four weeks.
W.P. (C) No. 12992/2009 Page 1 of 2
There is a penalty of Rs. 10,00,000/- imposed upon the appellant, which has been confirmed by the Tribunal. The appellant had deposited a sum of Rs. 2,00,000/- during the pendency of the appeal.
On a further deposit of Rs. 3,00,000/- within a period of four months, there shall be stay of proceedings. This amount of Rs. 3,00,000/- shall be deposited in four monthly installments of Rs. 75,000/- each.
List on 7th April, 2010.
A.K. Sikri, J.
Siddharth Mridul, J.
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On 7.4.2010 in the converted Appeal No. CUSAA 10 of 2009 the Court granted two weeks' further time to deposit 1/3rd amount as a condition for grant of stay. In compliance the petitioner deposited on 29.12.2009 by two demand drafts of Rs. 75,000/- each and on 12.3.2010, two more demand drafts of Rs. 75,000/- each were deposited in compliance with the condition of stay order.
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On 22.9.2010 the counsel appearing for the respondents raised a plea that in view of Ambica Industries v. Commissioner of Income Tax, 2007 (213) ELT 323 (SC), the Delhi High Court does not have territorial jurisdiction to entertain the appeal. Learned counsel for the appellant prayed for some time to look into the aspect on which the matter was adjourned to 1st October, 2010. The order is quoted as below:
22.9.2010
Present: Mr. R.K. Handoo with Mr. Aditya Chaudhary, Advocates for the appellant.
Mr. Mukesh Anand with Mr. R.C.S. Bhadoria and Mr. Sailesh Tiwari, Advocates for the respondent.
CUSAA No. 10 of 2009
Learned counsel for the respondent by way of demurrer raises the plea that this Court does not have the territorial jurisdiction to entertain this appeal. He relies upon the judgment of the Supreme Court in the case of Ambica Industries v. Commissioner of Income Tax, 2007 (213) ELT 323 (SC). Learned counsel for the appellant wants some time to look into this aspect. On his request, adjourned to 1st October, 2010.
A.K. Sikri, J.
Reva Khetrapal, J.
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On 1.1.2010 the High Court directed the appeal to be renotified on 26.11.2010. On 26.11.2010 the appeal was directed to be listed on 31.1.2011. The matter appears to have been again adjourned and on 29.4.2011 the following order was passed:
29.4.2011
Present: Mr. R.K. Handoo and Mr. S.P. Pandey, Advocates for the appellant.
Mr. Mukesh Anand, Advocate for the respondent.
CUSAA No. 10 of 2009
A request for passover is made by learned counsel for the respondent. However, learned counsel for the appellant states that he will be in some personal difficulty after lunch.
A copy of inquiry report be given to learned counsel for the appellant as well.
Accordingly, the present case is adjourned to 14th September, 2011.
A.K. Sikri, J.
M.L. Mehta, J.
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On 5.1.2012 the Delhi High Court dismissed the appeal as withdrawn with liberty to file appeal before the jurisdictional High Court. The order is quoted as below:
CORAM:
Hon'ble Mr. Justice Sanjiv Khanna
Hon'ble Mr. Justice R.V. Easwar
ORDER
5.1.2012
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vide order dated 9.11.2009 the present writ petition was converted and has been numbered as an appeal under the Customs Act.
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The order in original, i.e. first order, which was made the subject-matter of challenge before the Customs Excise and Service Tax Appellate Tribunal was passed by the Commissioner of the Customs, Kanpur.
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By order dated 22.9.2010 the Division Bench then hearing the matter, had raised the issue of territorial jurisdiction. In the case of Suresh Desai & Associates v. Commissioner of Income Tax, (1998) 230 ITR 912, it has been held that the appellate jurisdiction depends upon the location/place of the authority which had passed the order in original.
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Learned counsel for the appellant in these circumstances seeks permission to withdraw the present appeal with liberty to approach the jurisdictional High Court. He submits that the appellant is entitled to benefit of Section 14 of the Limitation Act, 1963.
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This writ petition was initially entertained and a conditional stay order was passed, which has continued. Even after the order dated 22.9.2010, the appeal has remained pending and various orders/directions have been issued, including direction to the respondent to file a copy of the enquiry report in respect of the customs officials involved.
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It is for the jurisdictional High Court to decide the prayer for waiver/exclusion. However, it does appear that...
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