Kishin S Loungani vs The Union Of India
2021 Latest Caselaw 4268 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                 THE HONOURABLE MR. JUSTICE AMIT RAWAL

     FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942

                  RP.No.27 OF 2021 IN WP(C). 6312/2020

AGAINST THE ORDER/JUDGMENT IN WP(C) 6312/2020(L) OF HIGH COURT OF
                             KERALA


REVIEW PETITIONER/S:

                KISHIN S LOUNGANI
                AGED 73 YEARS
                S/O SHEWARAM LOUNGANI,R/at 201 VILLA SWASTIKA,
                16TH ROAD,NEAR KHAR GYMKHANA, KHAR WEST,
                MUMBAI-400052.

                BY ADV. SRI.P.A.AUGUSTIAN

RESPONDENT/S:

      1         THE UNION OF INDIA
                THROUGH THE SECRETARY, MINISTRY OF FINANCE,DEPARTMENT
                OF REVENUE, NORTH BLOCK,
                NEW DELHI-110001.

      2         THE COMMISSIONER,
                HAVING OFFICE AT CUSTOM HOUSE,
                WILLINGTON ISLAND,COCHIN-682009.

                R2 BY ADV. SRI.RAJESH. K.RAJU

     THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 05.02.2021,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 RP.No.27 OF 2021 IN WP(C). 6312/2020

                                       2



                                 ORDER

Dated this the 5th day of February 2021

This is a review petition seeking review of the judgment

dated 3.3.2020 in W.P.(C) No.6312 of 2020.

2. In the main writ petition after considering the rival

contention of the parties as well as the material on record, the

following order, dated 3rd March 2020, was passed :

"Petitioner, aged 73 years, a permanent resident of Mumbai has approached this Court seeking transfer of the Appeal No.C/20005/2020 from the South Zonal Bench of Appellate Tribunal at Karnataka to the West Zonal Bench of Appellate Tribunal at Mumbai and for issuance of further directions not to hear the appeal by the Technical member whose appointment was challenged by the Advocate of the petitioner in the honourable Supreme Court.

2. The petitioner is carrying on business under the name and style of M/s R Kishin & Company, being a sole proprietor indulging in import and export of sports items. Import of goods valued at Rs.7,62,50,396/- were allegedly seized by the Custom Officers at Maharashtra and at Cochin. On 17.6.2015, the officers of the Directorate of Revenue Intelligence, Cochin seized the consignments of footballs covered by eight shipping bills from the premises of Gateway Distripark, Kerala Ltd in the purported belief that the same were being attempted for export in contravention of the provisions of the Customs Act, 1962.

Even consignment of six shipping bill was also seized on 18.6.2015. Statements of various persons including that of Sri.Mansukh Jagda, were recorded purported to be under Section 108 of the Customs Act, 1962. On 24.6.2015, Additional Chief Judicial Magistrate, Ernakulam remanded the petitioner to the custody of DRI officers for one day. By invoking the provisions of the Customs Act, the provisional release of the goods seized live consignments was permitted by the adjudicating authority on execution of a bond of Rs.4,72,65,400/- and a bank guarantee of RP.No.27 OF 2021 IN WP(C). 6312/2020

Rs.50,00,000/-. The aforementioned decision was appealed against and the Commissioner of Customs (Appeals) vide order dated 26.8.2015 reduced the quantum of bank guarantee to Rs.20 lakhs. The Additional Commissioner of Customs, Cochin issued a show cause notice dated 11.12.2015 by rejecting the declared value of the export consignments of 14 shipping bills and re-determined the amount including of the confiscated goods and proposed to impose a penalty on the petitioner under Section 114 and 114AA of the Customs Act, 1962 and imposed penalties on other persons also.

3. The adjudicating Authority vide Ext.P1 dated 12.12.2017 order-in-original No.140/2017 imposed penalties, redumption of fines and confiscated the goods. Against the aforementioned order, petitioner preferred an appeal bearing No.C27/12/SHB/2018/AU CUS. The aforementioned appeal has been dismissed vide Ext.P2 order dated 24.6.2019. Being aggrieved of Ext.P2 order passed by the Commissioner of Customs (Appeals) Cochin, petitioner preferred an appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Bangalore which is stated to be pending hearing and final disposal.

4. The learned counsel appearing on behalf of the petitioner submitted that the cause of action accrued for seeking the relief of the aforementioned on the premise that the petitioner availed the service of Mr.Niveet Seth, as his advocate to represent him before the Appellate Tribunal, but thereafter came to know that he had filed WP(C) No.205/2018 under Article 32 of the Constitution of India challenging the legality and validity of the order dated 16.2.2018 passed by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, Secretariat of the Appointments Committee of the Cabinet whereby five persons were nominated to be appointed as Technical Members of CESTAT. The honorable Supreme Court ordered to implead them as respondents Nos. 4 to 8 in the aforementioned writ petition. Later the honorable Supreme Court vide order dated 13.11.2019 disposed of the writ petition along with the 6 connected petitions, by granting certain reliefs, including interim measures, allowing the technical members to continue till such time the Government frames the fresh set of Rules of appointment. It is further submitted that petitioner has an apprehension that hearing of appeal along with the technical member P.Anjali Kumar for Bangluru Bench need not carry a prejudice.

5. As far as the case of transfer from South Zonal Bench to West Zonal Bench, it is submitted that the petitioner is a RP.No.27 OF 2021 IN WP(C). 6312/2020

senior citizen and resident of Mumbai and there is no regular bench of two learned Members available at Bangalore. It is in these circumstances, the petitioner is compelled to file the present writ petition.

6. The learned counsel for the respondents, on instructions, informs the Court there are total eight members and out of the five technical members, one Mr.Vijaya Kumar, the seventh respondent in the writ petition before the honorable Supreme Court has retired and there are four technical members in Principal Bench at Mumbai, Allahabad and Hyderabad. He submits that though he opposes the prayer made by the petitioner on the premise that this Court is not vested with the jurisdiction to order the transfer of the appeal from South Zonal Bench to West Zonal Bench but would not be averse in the case of inclusion of technical member, as the quorum of the Bangaluru Bench is headed by one other technical member who was not a party in the writ petition before the Honorable Supreme Court.

7. I have heard the learned counsel for the parties and appraised the documents. As far as the relief of the petitioner for transfer of the appeal from CESTAT at Bangaluru to Mumbai is concerned, the same cannot be accepted by this Court as this court do not have any jurisdiction to pass such order. At this stage, the learned counsel submits that he would not press this prayer but would make an appropriate application to the Appellate Tribunal purportedly under sub-section 6 of Section 129(C) of the Customs Act, 1962. In view of the aforementioned prayer, this Court refrains from adjudicating the first prayer.

8. Now coming in to the second relief, I am of the view that not only the law of equity but the interest of justice would warrant that any litigant would expect the hearing of the matter in the most unbiased and impartial manner. It is a matter of record that touring member (technical member of Bengalure) was the fifth respondent in the writ petition in the Supreme Court which has been now disposed of pending framing of the Rules, the outcome of the rule is not disclosed to this Court. But the fact of the matter is, the apprehension expressed cannot be said to be far-fetched for the reason, the presiding judicial member would not have any objection in case, the quorum for hearing the appeal is offered a different technical member than the one assigned as a touring member, particularly when the counsel representing the customs has expressed no objection.

9. In view of what has been stated above, the writ petition is disposed of with a direction that the appeal of the RP.No.27 OF 2021 IN WP(C). 6312/2020

petitioner pending before the CESTAT at Bangaluru shall be heard by judicial member and a different touring member than the one assigned for the Bangaluru also other than C.I.Mahar, Sanjeev Sreevastava, Sri.P.Venkita Suba Rao respondents in the writ petition before Supreme Court."

3. On 20.1.2021 when the review petition was listed,

this Court, passed the following order:

"The prayer in the application is for review of the judgment dated 3.3.2020 in W.P(C).6312/20 as this Court, while accepting second relief of the petitioner with regard to holding of the proceedings pending before the CESTAT at Bangaluru, had directed the authorities to hold the proceedings with members other than those members mentioned therein.

2. Learned counsel appearing on behalf of the petitioner submits that there are two technical members; Mr.C.J.Mathew at Madras and Mr.Raju at Ahamadabad, one of them can be a technical member with the judicial member through VC, in the matter pending before the CESTAT, Bangalore.

Issue notice. Mr.B.Rajesh accepts notice on behalf of the Customs and seeks two days time."

4. On the last date of hearing ie., on 25.1.2021, the

following order was passed.

Prayer is review of the judgment dated 3.3.2020 as there is an error apparent on record in paragraph seven (7) of the judgment under review.

2. This court, considering entire facts and circumstances including age of the petitioner, in the interest of justice and equity and also apprehension of hearing of appeal only by two technical (touring) members, for effective consideration and disposal of pending appeal before CESTAT, Bangalore with no objection from respondents, ordered hearing of appeal (pending) by judicial member and a different touring (technical) member other than the one assigned for Bangalore, i.e., other than C.I.Mahar, Sanjeev Sreevastava, Sri.P.Venkita Suba Rao.

1.3. Through instant petition it has been averred that judicial member is permanently posted at Tribunal at Bangalore thus, it is not possible to constitute Bench of two learned members RP.No.27 OF 2021 IN WP(C). 6312/2020

on a permanent basis but South Zonal Bench of the Appellate Tribunal at Mumbai has four permanent judicial members and three permanent technical members posted at Mumbai, thus requested this court to direct South Zonal Bench of the Appellate Tribunal at Bangalore to conduct "virtual hearing" only of the appeals of the petitioner by constituting Bench of judicial member.

1.4. Noticing the contentions, this court on 20.1.2021 issued notice of review petition by passing the following order:

"The prayer in the application is for review of the judgment dated 3.3.2020 in W.P(C).6312/20 as this Court, while accepting second relief of the petitioner with regard to holding of the proceedings pending before the CESTAT at Bangaluru, had directed the authorities to hold the proceedings with members other than those members mentioned therein.

2. Learned counsel appearing on behalf of the petitioner submits that there are two technical members; Mr.C.J.Mathew at Madras and Mr.Raju at Ahamadabad, one of them can be a technical member with the judicial member through VC, in the matter pending before the CESTAT, Bangalore.

Issue notice. Mr.B.Rajesh accepts notice on behalf of the Customs and seeks two days time.

Post on 25.01.2021."

1.5. Today, learned counsel for the respondents submitted that original constitution of Bench is governed by provisions of section 129 of Customs Act, 1962, but for effective adjudication this court can deem it expedient to make arrangement only for the purpose of virtual hearing as prayer for transfer of the matter was not pressed. 1.6. On the other hand, learned counsel appearing on behalf of the review petitioner submits, visiting technical member is not being able to hear the appeals of the petitioner. 1.7. I have heard learned counsel for the parties. For considering the request, this court deem it appropriate to seek comments of Registrar of CESTAT, Regional CESTAT, South Zonal Bench, Bangalore, whether it would be expedient to constitute Bench of member presiding Ahammadabad Bench of CESTAT through video conferencing as Bangalore Bench of CESTAT. Let the comments be sent within one week from receipt of order of this court.

5. In view of the order, comments of Assistant

Registrar CESTAT, Bangalore have been received by RP.No.27 OF 2021 IN WP(C). 6312/2020

communication dated 3.2.2021. The relevant portion of the

same is as under:

"The order in RP No.27/2021 in W.P.(C) No.6312/2020 of the Hon'ble High Court was placed before the Registrar, CESTAT, NewDelhi for his comments. The comments received from the Registrar is attached herewith."

FNo 30(17/DR AR/CESTAT/Admn13 Customs, Excise & Service Tax Appellate Tribunal West Block No. 2, RK. Puram, New Delhi-110066

Sub: Order dt. 25.01 2021 in RP No. 27/2021 n WP (C) No 6312/2020 reg:

Sir,

With the reference to Order dated 25.01.2021 passed by the Horse High Court of Kerala in RP No. 27/2021 in w IC No 6312/2020 (L), I am inform to you that the matter has since been placed before The Horde President and it has been observed as follows:

Shri Roju, Member Technical) would be available after 19.02.2021 as his tour to Delhi has been finalized. The matter con be heard in March since Shri S. S. Garg, Member (Judicial ) is also on tour to Delhi from 22.2.2021 to 26.

2. 2021.

In view of the comments of the Registrar, I am of the

view that it is not feasible that Mr.Raju, Member(Technical)

attached at Ahmadabad, who is perpetually on tour and the

matter to be heard while sitting with the Member(Judicial), is

also on tour, thus, it would most appropriate and suitable

approach, would be, to direct the Ahmedabad Bench of

CESTAT to decide the appeal through video conference, for RP.No.27 OF 2021 IN WP(C). 6312/2020

the reason, that one of the technical Member ie., Mr. Raju

would be also technical Member of Bangalore Bench. This

arrangement is being made keeping in view findings in order

dated 3rd March 2020 ibid and the fact that the appeal is

pending since long and also the fact that the review petitioner

is a senior citizen. Accordingly, the review petition is

disposed of directing that the appeal pending before CESTAT,

Bangalore shall be heard by Ahmedabad Bench through video

conference as Bangalore Bench of CESTAT as expeditiously

as possible, not later than within a period of forty five (45)

days from the date of receipt of a certified copy of this

judgment.

Sd/-

                                        AMIT RAWAL

  sab                                      JUDGE
 RP.No.27 OF 2021 IN WP(C). 6312/2020




                             APPENDIX
  PETITIONER'S/S EXHIBITS:

  ANNEXURE I           CERTIFIED COPY OF THE JUDGMENT DATED
                       03.03.2020 IN W.P(C)NO.6312 OF 2020.