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Instructions regarding procedure to be followed in cases where the
implementation of the High Court's judgement is pending for want of stay from
the Hon'ble Supreme Court
Circular No. 76 dated 28th June
1995
The undersigned
is directed to say that some instances have come to the notice of the Board
where proposals were sent to the Board for filing SLP with stay application
against the judgement/ order of the High Court directing release of goods/
refund of duty or penalty and although SLP with stay application had been filed
in the Supreme Court, the Commissioner released the goods/ refunded the duty o
penalty resulting in the SLP/stay application becoming infructuous. The stand
taken by the Commissioner was that as stay could not be obtained in time from
the Supreme Court, the High Court's ordered to be implemented. The matter has
been examined by the Board in consultation with the Ministry of Law, Justice
& Co. Affairs. The following instructions are issued on the subject for
strict compliance.
2. In
terms of the present practice in vogue in the Supreme Court Registry, the SLPs/stay
applications filed in the Supreme Court are listed for hearing in their own turn
according to the dates of their filing. However, in case of urgency, there is a
procedure of mentioning before the Bench headed by the Chief Justice of India
for ad interim stay till the stay application is heard and disposed of by the
Supreme Court. For this purpose, the Central Agency Section is required to file
an application with the Registrar of the Supreme Court giving reasons justifying
out turn hearing of the stay applications. In case the Registrar is satisfied
about the urgency, the application is included in the "list of cases for
urgent mentioning" and it is then possible to mention the case on the
following day before the Bench headed by the Chief Justice of India. In view of
this procedure, it is not possible to move the Supreme Court for out of turn
hearing of stay applications in a routine way. At the same time,
non-implementation of the High Court's order without obtaining stay from the
Supreme Court may create complications.
3. To
obviate this situation, it is directed that in cases where the High Court has
stipulated any time limit for implementation of its order, the Customs House/
Central Excise Commissionerate should file an application before the High Court
requesting for extension of time limit for implementation of its order till the
Department's SLP/ stay application is heard and disposed of by the Hon'ble
Supreme Court. If the High Court rejects the application, a copy of the
application filed and order of the High Court should be immediately faxed to the
Board. Similarly, in cases where no time limit is stipulated by the High Court
for implementing its order but the petitioner files contempt petition/ notice in
the High Court, the same should be immediately faxed to the Board. It would then
be possible for the Board's office to use these documents for filing urgency
petition before the Registrar of the Supreme Court for inclusion of the
Department's application for out of turn hearing in the "list of cases for
urgent mentioning", and get interim stay from the apex court.
4. In
view of the procedure prescribed above, no unilateral decision should be taken
by the Commissioner to release the goods/ order refund in a case where SLP/ stay
application of the Department against the order of the High Court is pending a
decision before the apex court. The decision in such cases should be taken only
in consultation with the Board.
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