Case Law Details
Vaish Brother Through Partner Vs Commissioner of Customs (Delhi High Court)
It is not disputed that the respondent / revenue accepts that the appellant had right to file an appeal challenging the order of the first appellate authority confirming penalty imposed by the Order in Original before the Appellate Tribunal under Section 129A (1) of the Act. Proviso (iii) to sub-section 1 of Section 129A gives discretion to Tribunal to admit or not to admit an appeal where the amount of penalty determined does not exceed Rs.2.0 lakhs. That the discretion exists cannot be disputed. In the present appeal, however, it is exercise of the discretion in not entertaining and admitting the appeal which is in question. The impugned order merely refers to the proviso and the discretion vested with the Tribunal. The Order is silent and does not state and give reasons for exercise of discretion i.e. refusal to admit and decide the appeal on merits. Discretion gives choice of option, but the choice of option in quasi judicial matters is not absolute and unfettered. Discretion vested vide proviso to Section 129 A of the Act is an effective tool which enables the Tribunal not waste time and effort in deciding petty and small amount cases. However, this discretionary power must be exercised and be guided by reasonableness and fairness, as the bar or prohibition is not absolute and applicable universally to all cases. Discretion should not be excised whimsical and in an arbitrary manner for then it may lead to odd and unacceptable consequences and results.
[See Bangalore Medical Trust Vs. B.S. Muddappa & Ors. (1991) 4 SCC 54]
We have referred to the concept of discretion and exercise of discretion as we find that the appeal preferred by M/s. Singh World was also listed before the Tribunal on the same date and was allowed vide order dated 17th March, 2017. The penalty imposed on M/s.Singh World was quashed and cancelled though the script used by M/s. Singh World and the appellant was the same. No distinction or difference of facts etc. is recorded and noticed in the impugned order. Thus, the appellant, who had to pay less penalty would be penalized and suffer, while M/s.Singh World, who had to pay higher penalty would get benefit as their appeal was heard and decided on merits.
Counsel for the respondent is correct when he asserts that the penalty imposed in the case of M/s. Singh World is more than Rs. 2.0 lakhs, therefore, their appeal could not have been dismissed under the proviso. The argument fails to notice and give due regard to the difference between existence of discretion and wrong and erroneous exercise of power conferred i.e. exercise of discretion. Existence of power would not be a good justification and reason for the Tribunal not to exercise discretion in favour of the appellant when on similar and identical facts they have allowed the appeal preferred by another appellant for using the same script.
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