Kerala High Court
Kishin S. Loungani vs The Union Of India on 19 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942
RP.No.231 OF 2021 IN WP(C). 6438/2020
AGAINST THE ORDER/JUDGMENT IN WP(C) 6438/2020(D) OF HIGH COURT OF
KERALA
REVIEW PETITIONER/PETITIONER IN W.P.(C):
KISHIN S. LOUNGANI
AGED 72 YEARS
S/O.SHEWARAM LOUNGANI, R/O 201 VILLA SWASTIKA,
16TH ROAD, NEAR KHAR GYMKHANA,
KHAR WEST, MUMBAI-400052.
BY ADV. SRI.P.A.AUGUSTIAN
RESPONDENT/RESPONDENT IN WP(C):
1 THE UNION OF INDIA
THROUGH THE SECRETARY, MINISTRY OF FINANCE,
DEPARTMENT OF REVENUE, NORTH BLOCK,
NEW DELHI-110001.
2 THE COMMISSIONER OF CUSTOMS,
HAVING OFFICE AT CUSTOM HOUSE,
WILLINGTON ISLAND, COCHIN-682009.
BY ADV. SRI.RAJESH. K.RAJU
BY SRI. P.VIJAYAKUMAR, ASGI
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
19.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
R.P.No.231/2021 & WPC.6438/20
2
ORDER
Dated this the 19th day of March 2021
This review petition has been filed in respect of the
judgment dated 03.03.2020 in W.P.(C).No.6438/2020 wherein
following relief was sought:
"i. issue a Writ of Mandamus or any other appropriate
Writ, order or direction under Article 226 of the Constitution
of India, commanding the Commissioner of Customs
(Appeals), Customs House, Willington Island, Cochin- 682
009, State of Kerala, to transfer the Appeal
No.C27/118/DR1/2018/AU.CUS filed by the Petitioner and
pending before the Commissioner of Customs (Appeals),
Cochin against the Order-in-Original No. 139/2018 dated
17.09.2018 passed by the Additional Commissioner of
Customs (DRI), Customs House, Cochin-09, for hearing to
the Commissioner of Customs (Appeals), Mumbai in the
State of Maharashtra with all papers and proceeding
relating thereto;
ii. issue a Writ of Mandamus or any other appropriate
Writ, order or direction under Article 226 of the Constitution
of India, commanding the Respondents to pay costs to the
Petitioner, for this additional and unavoidable litigation;
iii. issue any other appropriate Writ, order or direction
under Article 226 of the Constitution of India, that this
R.P.No.231/2021 & WPC.6438/20
Hon'ble Court may deem fit and proper in the facts and
circumstances of the case.
2. This Court granted liberty to the petitioner to
approach the Central Board of Customs and Indirect Taxes.
While withdrawing the writ petition the petitioner sought the
liberty to approach the Central Board of Customs for transfer of
the appeal pending before the Commissioner of Appeals and in
case such application is made, the authority would endeavor to
decide the application in accordance with law. The judgment
was delivered on 12.03.2020 and thereafter there was a
complete lock down in the country. During the interregnum
Commissioner of Customs (Appeals) vide order dated
26.05.2020 rejected the appeal filed by the petitioner and
upheld the order in original dated 12.12.2017.
3. Petitioner preferred an appeal dated 26.05.2020
before Customs, Excise and Service Tax Appellate Tribunal,
Bangalore, registered as No.C/20305/2020.
4. Learned counsel appearing on behalf of the review
petitioner submitted that in addition to the aforementioned
R.P.No.231/2021 & WPC.6438/20
appeal, other Appeal No.C/20005/2020 was also preferred and
sought intervention of this court by filing another writ bearing
no W.P.(C).No.6312/2020,wherein following reliefs were
sought:
"i.Issue a Writ of Mandamus or any other appropriate
Writ, order or direction under Article 226 of the
Constitution of India, commanding the South Zonal
Bench of the Appellate Tribunal at Bangalore to transfer
for hearing on merit the Appeal No. C/20005/2020 filed
by the Petitioner against Ext P-2 Order-in-Appeal to the
West Zonal Bench of the Appellate Tribunal at Mumbai
with all papers and proceeding relating thereto for
hearing at Mumbai;
ii. Issue a Writ of Mandamus or any other
appropriate Writ, order or direction under Article 226 of
the Constitution of India, commanding the learned
Members (Technical) whose appointment was
challenged by the Advocate for the Petitioner not to
hear the Appeal No.C/20005/2020 filed by the
Petitioner against Ext P-2 Order-in-Appeal passed by
the Commissioner of Customs (Appeals).
iii. Issue a Writ of Mandamus or any other
appropriate Writ, order or direction under Article 226 of
the Constitution of India, commanding the
Respondents to pay costs to the Petitioner, for this
additional and unavoidable litigation;
R.P.No.231/2021 & WPC.6438/20
iv. Issue any other appropriate Writ, order or direction
under Article 226 of the Constitution of India, that this
Hon'ble Court may deem fit and proper in the facts and
circumstances of the case."
5. This Court vide order dated 03.03.2020 disposed of
this writ petition by considering all the facts considering that
one of the touring member could hear the matter in view of the
explanation given in the writ petition with a direction that the
appeal of the petitioner pending before CESTAT at Banglore
shall be heard by judicial member and a different touring
member other than the one assigned for Bangalore, also other
than C.I.Mahar, Sanjeev Sreevastava, Sri. P.Venkita Suba Rao,
who were arrayed as respondents in the writ petition before
Supreme Court. A review petition bearing No.27/2021 was filed
on the premise that there are two technical members
Sri.C.J.Mathew at Madrass and Sri.Raju at Ahamadabad and
one of them can be technical member with the judicial member
to hear the matter through VC in the matter pending before
CESTAT, Bangalore. During the pendency of the review petition,
this Court sought the comments of the Registrar of CESTAT.
The Registrar sent his comments and stated that Sri.Raju
R.P.No.231/2021 & WPC.6438/20
technical member would be available after 19.02.2021 as his
tour to Delhi had been finalized and the matter could be heard
in March since one Sri.S.S Garg, learned judicial member was
also on tour. Keeping the aforementioned fact vide order dated
05.02.2021 this Court disposed of the review petition by
holding that it would not be feasible that Sri.Raju technical
member who was perpetually on tour and the matter would be
heard while sitting with the member judicial who was also on
tour and an appropriate and suitable approach was taken by
directing the Ahmedabad Bench of CESTAT to decide appeal
through video conference for the reason that one of the
technical member Sri.Raju would also be a technical member
of Bangalore Bench. The aforementioned arrangement was
made keeping in view the findings in the order dated
03.03.2020.
5. Since similar situation has arisen in respect of the
second appeal bearing No.C/20305/2020 ,therefore, the review
petition has been filed for recalling of the order and pass an
appropriate order.
R.P.No.231/2021 & WPC.6438/20
6. Learned counsel appearing on behalf of the
respondents though submitted that at the time when the writ
petition was disposed of on 03.03.2020 there was no such
appeal pending except the appeal before the commissioner, but
do not deny the fact that in a connected writ petition bearing
No.6312/2020 in a review petition No.27/2021 this Court had
ordered the arrangement as noticed above.
Accordingly, I recall the order dated 03.03.2020 in W.P.
(C).No.6438/2020 and dispose of the review petition and the
writ petition by issuing orders in the same manner as has been
done in the review petition No.27/2021 in in W.P.
(C).No.6312/2020 in respect of the appeal No. C/20005/2020
by directing that the Ahmedabad Bench of CESTAT shall decide
the appeal No.C/20305/2020 through video conference as one
of the technical members ie., Sri.Raju a technical member of
Bangalore Bench along with other pending appeal bearing no
C/20005/2020 pending before CESTAT Bangalore shall be
heard by Ahmedabad Bench through video conference as
Bangalore Bench of CESTAT as expeditiously possible, not later
R.P.No.231/2021 & WPC.6438/20
within a period of 45 days from the receipt of a certified copy
of this order.
Review petition and writ petition ordered accordingly.
Sd/-
AMIT RAWAL
JUDGE
nak
