1. Customs exemption dispute — Notification conditions regarding intended use of imported material — Tribunal order based on concession. (Para 1 , 2 , 3 )
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1996 Supreme(SC) 1558
SUPREME COURT OF INDIA
K S Paripoornan, S P Bharucha
COLLECTOR OF CUSTOMS, BOMBAY, APPELLANT
VERSUS
T. K. SYNTHETICS & LTD., RESPONDENTS.
Civil Appeal No. 4696 of 1984, decided on September 26, 1996.
Important Points
The Supreme Court declined to interfere with a Tribunal's order granted based on a concession by the Departmental Representative, although it noted such concessions on law may not be binding, allowing the appellant to seek a review from the Tribunal if legally permissible.
Subject
Customs and Excise - Exemption from Customs Duty
Headnote
Custom, excise and Gold control - Production of polyamide - Order under appeal passed by Customs, Excise and Gold (Control) Appellate Tribunal on record - When appeal was taken up one for appellants mentioned that in view of ratio of judgment of this Tribunal in Order, appeal has to be allowed - JDR for respondent, agrees that it is so, upon a rectification application filed by respondents, number of notification in order under appeal was corrected so as to read "Notification - Learned Additional Solicitor General now draws our attention to terms of Notification and points out that for exemption thereunder to apply it is necessary that aforesaid caprolactum is intended to be used and is used for production of polyamide (nylon) yarn of not above 225 deniers - Order records that Departmental Representative, did not oppose application – Held, court find that Tribunal decided the matter upon concession of Departmental Representative appearing for appellant that appeal before the Tribunal had to be allowed in view of its earlier decision in Order appeal against which incidentally this Court has dismissed in Collector of Customs V. J. K. Synthetics Ltd. ((1997) 10 SCC 224 : (1996) 87 ELT 582) Even when respondents sought rectification of order of Tribunal, requiring correct number and date of said notification to be mentioned, appellant did not wake up to the position now canvassed on their behalf - This may not be a concession on a point of fact which would bind the appellant, but it is, in circumstances, not appropriate for us to interfere in appeal - It shall be open to appellant to move Tribunal in review or in such other manner as is deemed appropriate, if permissible in law, and Tribunal may decide such application on its merits - Appeal is dismissed,
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Table of Contents
2. Appellant contends the Tribunal ignored specific notification conditions regarding the intention to use imported material for specific production. (Para 3 )
3. The Tribunal decided the matter based on a concession by the Departmental Representative, which the appellant failed to contest during rectification. (Para 4 , 5 )
4. A concession made before a tribunal may preclude appellate interference, regardless of whether it is a point of fact, if not raised timely. (Para 5 )
5. Appeal dismissed; appellant permitted to move the Tribunal for review if permissible in law. (Para 5 , 6 )
6. Does a concession made by a representative before a tribunal bind the party in a subsequent appeal?
A concession on a point of fact may not strictly bind the appellant, but it may be considered inappropriate for a higher court to interfere in appeal if the party failed to raise the issue during the original proceedings or rectification. (Para 5 )
7. What remedy is available to a party who believes a tribunal failed to apply its mind to the terms of a notification after a concession was made?
The party may move the tribunal for a review or other appropriate legal remedy, provided it is permissible in law, where the application can be decided on its merits. (Para 5 )
ORDER
1. The order under appeal passed by the Customs, Excise and Gold (Control) Appellate Tribunal on 6-9-1984 records thus :
"When the appeal was taken up Shri Ravinder Narain for the appellants mentioned that in view of the ratio of the judgment of this Tribunal in Order No. 516/84-C dated 2-8-1984 (Appeal No. CD (SB) (T) 7/77-C), this appeal has to be allowed. Shri A. S. Sunder Rajan, JDR for the respondent, agrees that it is so."
2. On 9-7-1985, upon a rectification application filed by the respondents, the number of the notification in the order under appeal was corrected so as to read "Notification No. 8 of 1977 dated 24-1-1977" instead of "Notification No. 88 of 1973 dated 1-3-1972". The order dated 9-7-1985 records that the Departmental Representative, Mr. Sunder Rajan, did not oppose the application.
3. The learned Additional Solicitor General now draws our attention to the terms of Notification No. 8 of 1977 and points out that for the exemption thereunder to apply it is necessary "that the aforesaid caprolactum is intended to be used and is used for the production of polyamide (nylon) yarn of not above 225 deniers". He draws our attention to the order dated 16-6-1978, of the Appellate Collector of Customs who had noted that the respondents had produced evidence to show that the caprolactum had been used as required by the said notification but they had not proved that the imported caprolactum had been intended to be used in the said manner. The Appellate Collector had, therefore, held that, the first condition being not satisfied, the claim of the respondents to the benefit of the said notification had to be rejected. The learned Additional Solicitor General submits that the Tribunal had not applied its mind to the terms of the said notification and the case of the appellant that its terms were not satisfied.
4. We find that the Tribunal decided the matter upon the concession of the Departmental Representative appearing for the appellant that the appeal before the Tribunal had to be allowed in view of its earlier decision in Order No. 516/84-C dated 2-8-1984, the appeal against which, incidentally, this Court has dismissed on 24-9-1996 in Collector of Customs V. J. K. Synthetics Ltd. ((1997) 10 SCC 224 : (1996) 87 ELT 582) Even when the respondents sought rectification of the order of the Tribunal, requiring the correct number and date of the said notification to be mentioned, the appellant did not wake up to the position now canvassed on their behalf.
5. This may not be a concession on a point of fact which would bind the appellant, but it is, in the circumstances, not appropriate for us to interfere in appeal. It shall be open to the appellant to move the Tribunal in review or in such other manner as is deemed appropriate, if permissible in law, and the Tribunal may decide such application on its merits.
6. The appeal is dismissed, with no order as to costs.
