Customs, Excise and Gold Tribunal - Delhi
Hindustan Photo Films vs Collector Of Customs on 31 July, 1989
Equivalent citations: 1990ECR116(TRI.-DELHI), 1989(43)ELT429(TRI-DEL)
ORDER I.J. Rao, Member (T)
1.The two captioned appeals were filed before this Tribunal by M/s. Hindustan Photo Films (herein after referred to as HPF). These appeals were against the orders alleged to have been passed by the Collector of Customs, Bombay on 5-6-1989 (appeal No. C/1934/89-A) and passed by the Collector of Customs, Rajkot on 31-1-1989.
2. The appeals arose as a consequence of the imports by M/s. Northern Plastics Ltd. New Delhi (herein after referred to as Northern Plastics) of rolls of cinematographic colour films. It is the case of HPF that the goods were infact jumbo rolls, that they were wrongly valued and that the rate of duty was also wrong in so far as importation at Rajkot, consisting of 59 rolls described as cinematographic colour films, was concerned. Northern Plastics produced an import licence and claimed benefit of two exemption Notifications. The Collector of Central Excise, Rajkot, after due process rejected the claim for concession and released the goods on payment of duty.
3. The importation at Bombay was also allowed on similar terms. Northern Plastics offered to pay duty at the full rate and produced an Additional Licence. The order to release the goods on payment of duty and under the Additional Licence were passed by the Collector in the file. There is no indication that a formal order has been issued. However, Northern Plastics paid the duty and sought to clear the goods.
4. HPF felt aggrieved by the decision of the Customs at Bombay and Rajkot to release the goods to Northern Plastics. It is their plea that the release of the goods to Northern Plastics was against law and that it caused a grievance to them. They, therefore, filed these two appeals.
5. It is in this background that Northern Plastics filed the miscellaneous applications submitting that HPF are not the aggrieved persons and that, therefore, their appeals are not maintainable (Miscellaneous application No. 335/89 in respect of order passed by the CC, Bombay and 323/89 in respect of order passed by the CC, Rajkot).
6. In view of these circumstances we have to first decide whether the two appeals filed by HPF are maintainable. We, therefore, heard them on 27th and 28th July 89. After full arguments were heard in miscellaneous application appeal No. C/1491/89-C was also transferred to the Bench under the orders of the Senior Vice-President. All the 3 parties involved consented for taking up the preliminary objection raised therein also. In fact they adopted the arguments for both the matters.
7. We heard HPF, Northern Plastics and the Department through their representatives during the course of these proceedings.
8. Much litigation in the matter took place in High Courts and in the Supreme Court. We need not go into the details for deciding these matters. By an order dated 27-7-1989 the Hon'ble Supreme Court directed that orders be passed on the appeals as quickly as possible and that such order should be available by 2nd August 89. In obedience to the Supreme Court's order we took up the matters for hearing on the afternoon of 27-7-1989 and on 28-7-1989. The Miscellaneous Applications filed by Northern Plastics were taken up first as these challenged the very maintainability of these two appeals before this Tribunal.
9. Shri Kantawala, the learned Advocate for Northern Plastics submitted that HPF are not "aggrieved persons" within the meaning of Section 129-A of the Customs Act,1962 and that they have no right to file appeals against the orders passed by the two Collectors. He argued that the expression "person aggrieved" occurring in that Section was not defined in the Customs Act. He referred to the definition of "persons aggrieved" in Law Lexicon edited by Shri P. Ramanath Iyyer (reprinted Edition -1987) and brought its contents to the Court's notice. He also submitted that according to Biswas Encyclopaedia Law Dictionary (Second Edition) "person aggrieved" does not mean a person who is disappointed of a benefit which he might have received if some other Order has been made. (We shall be referring to this in detail later). He submitted that the Hon'ble High Court of Allahabad approved the definition given in this Encyclopaedia Law Dictionary in 1971ALJ 274 and that this definition was also followed in the case of Atlas Exports and Anr. v. K.V. Iraniraya [1989 (40) E.L.T. 3 (Bombay)].
10. Shri Kantawala argued that the right to appeal is not an inherent right but must be conferred by the Statute either specifically or by necessary implications. In this context the learned Advocate cited the judgment of the Supreme Court in Gangabhai v. Vijaya Kumar [AIR 1974 S.C. 1126]. He argued that in the light of this judgment the position is that if a person has to maintain an appeal it is for him to establish that he has such a right. He referred to decisions by the CEGAT having a bearing on the question of a right to appeal. These were as follows:
1. Hindustan Aeronautic Ltd. v. Collector of Customs [1983 (14) E.L.T. 2012]
2. Polychem Ltd. v. Collector of Customs, Bombay [1987 (30) E.L.T. 1007]
3. Rajesh K. Bhansali v. Collector of Customs [1988 (38) E.L.T. 208]
11. The learned Advocate further argued that Section 129-A of the Act does not confer a right of appeal on anybody but only on a person who by the direct act of the Collector is aggrieved. He submitted that such person should have had something done or determined against him by the Collector. Shri Kantawala argued that HPF are not such persons and they are not adversely affected by the order of the Collector. They were not deprived of anything by this order which was not communicated to them. The Customs did not proceed against them and, therefore, they have no grievance or a legal right to file the appeal. The learned Advocate referred to a judgment of the Calcutta High Court in the case of D. Sengupta v. Collector of Customs [1987 (31) E.L.T. 30] and submitted that when an order is made affecting a party or prejudicated him, the order must be communicated to that party. The learned Advocate submitted that this Statutory Tribunal has no jurisdiction under the law to traverse beyond the confines of law.
12. Shri Sanghi, the learned Advocate in his reply submitted that the appeals are maintainable as HPF are persons aggrieved by the orders impugned before the Tribunal. He stated that HPF is a Government of India Company in which all shares are owned by the President of India. It was incorporated in 1961 with the objective of setting up of the Company for progressive manufacture of photo-sensitized goods of various description. There was a large investment amounting to Rupees 440 crores and its establishment was a part of Industrial and Economic Development of the Country. The learned Counsel submitted that HPF was importing jumbo rolls of photo sensitized material since 1973 and in subsequent years obtained certain concessions on some of the imports. In June 84 Customs duty was reduced on graphic art films and photographic colour papers. He explained that after the issue of the concession many private units began to import jumbo rolls of photo sensitized rolls claiming to be small scale units to whom there are some special concessions. As a result, Shri Sanghi submitted, some foreign manufacturers flooded the Indian market with their goods. The result of such flooding was that valuable foreign exchange was frittered away and also adversely affected the planned activity of the HPF in development of indigenous manufacture. The learned Counsel submitted that in view of the situation, the Government of India took action under the Industries (Development and Regulation) Act 1951 making it obligatory for the small scale units to obtain an industrial licence and by prescribing fine and prosecution to those who violated the provisions. Several conditions and prohibitions were introduced under the Act. Notifications were also issued including one by the Ministry of Finance under Section 25(1) of the Customs Act (herein after referred as Act) (Notification No. 216/88) which exempted jumbo graphic films and the photographic colour papers of specific description from duty subject to two conditions including one that the importer should hold an industrial licence under JDR Act for Slitting and Confectioning of photo-sensitized material from jumbo rolls.
13. The learned Advocate submitted on behalf of the HPF that Northern Plastics are not entitled to the importation or concessional rate of duty. He gave detailed reasons for the same which are not relevant for the purpose of deciding the preliminary objection of maintainability of the appeals. Suffice to say that, as mentioned eariler, that the learned Advocate argued that the orders passed by the Collectors of Customs, Bombay and Rajkot impugned in these two appeals are totally against legal provisions and that they harm the interests of the HPF which makes them aggrieved persons.
14. Shri Sanghi's main submission was that Northern Plastics were not the "actual users" which they have to be as a condition for importing the goods under OGL. He submitted that HPF are vitally interested in preventing illegal importation and argued in detail that if such imports are allowed HPF, a Public Sector Undertaking with a huge outlay and having a share in the future of Indian Technology would be thwarted in its purpose leading to national loss and unfair advantage to foreign companies who seek to dump jumbo rolls in India.
15. Strongly opposing Shri Kantawala's arguments that HPF were not persons aggrieved, the learned Advocate submitted that the term "any person aggrieved", is wide enough and should be interpreted liberally and not in a narrow sense. The learned Advocate referred to the judgments of Delhi and Calcutta High Courts and submitted that these judgments recognised and accepted the vital interests of the appellants in the proceedings. He cited the following judgments to support his arguments.
1. AIR 1982 SC 149 S.P. Gupta and Ors. v. Chief Justice and Ors.
2. AIR 1975 SC 2092 Bar Council of Maharashtra v. V.M. Dabholkor
16. The learned Advocate further submitted that the judgment in Dabholkor considered the case of Adigandhi (AIR 1971 SC 385) and submitted that the Tribunal in some of its judgments relied on that judgment (1983 E.L.T. 974) and argued that after Supreme Court's judgment in S.P. Gupta this view was modified in Dabholkor. Therefore, the Tribunal's judgment was not good law though, even so, the guidelines given in Adigandhi's case also would lead to the conclusion that HPF are an aggrieved party.
17. The learned Advocate argued that the purpose of enacting the Customs Act was to protect the economy of the country and any importation which would harm the national interests and the economy of the country would be contrary to Customs Act and, therefore, in view of the background of the matter HPF are "aggrieved persons", entitled to file these appeals.
18. Shri Kantawala in his rejoinder submitted that the authorities cited by the HPF related to judgments where Statutes were examined with reference to constitutional rights by Constitutional Benches. He submitted that this Tribunal being a creature of the Customs Act cannot go into the questions of constitutionality and should go only by the provisions of Customs Act. He referred to a judgment of the Tribunal 1984 (15) E.L.T. 275 (Tribunal) and submitted that the Tribunal therein held that a Collector was not an "aggrieved person". This led to the amendment to the Statute enabling the Collector to file an appeal. He questioned the claims of HPF that they are helping the country's economy and denied that there was any illegality committed by Northern Plastics. He also submitted that it was significant to note that the Hon'ble Supreme Court itself did not make HPF a party respondent in Special Leave Application granted in Civil Appeal No. 2376/89. The learned Advocate pleaded that in the circumstances HPF have no right of appeal and both these appeals should be dismissed on this ground alone.
19. Shri Kantawala also objected to the appeal against the Bombay Collector's order on the ground that there was no order original and no certified copy thereof. He submitted that the Scheme of the Customs Act relating to the Tribunal contemplates only two parties viz. the Importer and the Collector and the third party is not contemplated. He submitted that a competitor cannot be an aggrieved party and pointed out that Northern Plastics paid full duty. The learned Advocate emphasised that if a monopoly is created by a statute a breach of such monopoly may lead to a grievance. But no such monopoly has been created by law in this case. HPF were only a company and they may have a grievance but no right of appeal, according to Shri Kantawala. He at one stage suggested initiation of Criminal Proceedings for contempt against HPF but was told that this is not the veneu for such a prayer.
20. Shri Sanghi submitted that the real case law that is relevant to the proceedings is the Supreme Court's judgment in S.P. Gupta and emphasised that seven Hon'ble Judges of the Supreme Court constituted the Bench. He submitted that even Dabholkor judgment (supra) supports HPF case and reiterated that there should not be a narrow view in deciding the meaning of the word "person aggrieved". He reiterated that the purpose of the Customs Act was economic protection to indigenous industries and with the same purpose Parliament enacted the Import and Export Act also. He pleaded that dumping by the foreign suppliers can be proved by the fact that Northern Plastics paid duty on a value 40% less than HPF and reiterated that Northern Plastics or any one other than HPF had no manufacturing Licence which is a statutory necessity.
21. The learned Advocate finally submitted that the Calcutta and Delhi High Courts allowed HPF as a party and made the proposition that every Court and Tribunal should enlarge its jurisdiction and not constrict it. He pleaded that for HPF this was a question of survival and the term "any person aggrieved" should be interpreted liberally to save the interests of the Company. He also argued that in a sense this Tribunal has wider scope under Article 226 of the Constitution which did not refer to "any person aggrieved" which is a such wider term than the terms in Article 226. He submitted that as soon as possible HPF would file a certified copy of the order and pleaded that the appeal should not be dismissed on the technical ground alone.
22. Shri Sunder Rajan, the learned DR submitted that the Collector, Rajkot has filed an appeal under the orders of the Board and, therefore, the Tribunal is bound to go into the full merits of the matter. He argued that the language of Section 129-(A)(1) shows that the words "any person aggrieved" would mean that more than one person may be aggrieved and, therefore, even if the Collector files an appeal HPF could still be another person aggrieved. He cited the judgment of the Tribunal in Mahendra and Niahendra v. Collector [1983 E.L.T. 974 (T)] and submitted that in that judgment it was hold that a purchaser is not an aggrieved person. But here HPF is not merely a consumer but a custodian of the country's economic interests even though in a restricted field. Since the Collector's decision harms the interests of HPF, Shri Sunder Rajan submitted that since Northern Plastics has no industrial licence, HPF should be considered as persons aggrieved. He referred to a judgment of the Tribunal in Tata Oil Mills Company v. Collector [1986 (24) E.L.T. 290 (Larger Bench (Tribunal)] and pointed out that the Tribunal allowed interveners whose appeals were already decided by the Tribunal. Referring to the arguments of Shri Kantawala that in respect of the appeals against the Bombay Collector's orders there was no certified copy, Shri Sunder Rajan argued that this was not a statutory requirement but was only a procedural one and that the omission could be remedied. He also argued that the extract of a note-sheet (filed by HPF in Bombay appeal) is an "order". Finally Shri Sunder Rajan pleaded that even a condemned person is given an opportunity to have his say before he is hanged and HPF's appeals should not be dismissed without being heard on merits.
23. We have considered the arguments of all the 3 parties. To consider some of the general arguments first would be helpful in arriving at a decison on the question before us namely, whether HPF are covered by the expression "any person aggrieved..." appearing in Section 129-A of the Act.
24. Shri Sanghi, in his arguments, submitted that the purpose of the Customs Act was the protection of the economy of the country and also the protection of the indigenous industry from being swamped by foreign technology. Development of in-digeneous technology, according to the learned Advocate, was one of the purposes of the Customs Act. However, a look at the Act (Act 52 of 1962) shows that it is an Act to consolidate and amend the law relating to Customs. The statement of objects and reasons of Bill No. 56 of 1962 which was passed as Customs Act, 1962 was as under :
"The Sea Customs Act which lays down the basic law relating to customs was enacted more than 80 years ago. It has been amended from time to time and some important amendments were made by the Sea Customs (Amendment) Act, 1955. General and comprehensive revision of the Act has not so far been undertaken. Several provisions of the Act have become obsolete. Difficulties have also been experienced in the implementation of certain other provisions. The trade has been pressing for certain changes and facilities. Smuggling, consequent to controlled economy, has presented new problems. To meet these requirements, it has become necessary to revise the Act.
The Land Customs Act was passed in 1924. It is not a self-contained Act and applies by reference provisions of the Sea Customs Act to land customs with certain modifications. There is no separate law relating to air customs, and the administration of air customs is governed by certain rules made under the Indian Aircraft Act, 1911. While revising the Sea Customs Act, it is proposed to consolidate the provisibns relating to sea customs, land customs and air customs into one comprehensive measure.
The Notes on Clauses explain in detail all the changes which are proposed to be introduced in the new law as compared with the existing Law."
25. Therefore, protection of indigenous industry from the onslaught of foreign technology and dumping is not the stated object of the Act. However, the Act lays down the requirements for the import of goods and it contains provisions by which only imports covered by licences are permitted and if there is no valid licence the goods can be confiscated. Therefore, the Act indirectly serves the purpose of the Government in developing the economy of the country in the manner they deem fit. The Government have powers to restrict imports, to ban them and to confiscate imported goods if such imports are made against the provisions of the Customs Act or any allied law. We make these observations as the Act is only an instrument for achieving the economic and technological aims of the Government in an indirect way. It does not concern itself directly with such aims.
26. We do not want to enter into the merits of the arguments put forth on behalf of HPF about the harm that the two importations in question would cause them if the two orders passed by the Collectors are not set aside. There are no details and no solid evidence about it. It is quite possible that HPF may not find it conducive to their own activities if imports of Jumbo rolls are allowed to others. But does it make the "persons aggrieved" in terms of Section 129 A of the Act?
27. We agree that the law and the terms therein should be interpretted liberally. But while giving interpretation it has to be remembered that such interpretations cannot go beyond the scope of the statute itself. It is very important to remember that this Tribunal is a creature of the statute and not of the Constitution of India. We do not agree with the submissions of the learned Counsel Shri Sahghi, that the words "any person aggrieved" appearing in the Act have even wider scope than the persons referred to in Article 226 of the Constitution. The powers of the Tribunal are defined by law. It can hear appeals specified in Section 129. It cannot exercise any of the powers conferred on the High Courts under Article 226 and its activities are necessarily to be confined to the provisions of the Act and no more. It cannot sit in judgment over Civil rights, economic rights or any other areas in which even if an individual or a Company is aggrieved, if such a grievance does not directly arise out of the provisions of Customs Act. We keep the scope of the Customs Act in mind while examining the arguments of the three parties who gave learned expositions on the meaning of the term "any person aggrieved" appearing in Section 129A of the Act.
28. There is no definition of the term "aggrieved person" in the Customs Act. Therefore, we have to rely on the judicial interpretations of the word by various Courts in India and abroad. Reference was made during the course of arguments to the judgments of some English Courts which were referred to in 1989 (40) E.L.T. 3 (Bombay) in the case of Atlas Exporters and Anr. v. K.V. Irniraya, ACCIE. We also bear in mind the proceedings before us are appeal proceedings and not original proceedings.
29. Many examples have been recorded on the term "aggrieved" in Stroud's Judicial Dictionary (4th Edition). The following among them, appear to indicate a way of approaching the problem that is before us:
(i) A rival inn-keeper is not such "aggrieved person" by reason of a new licence being granted within a short distance of his premises;
(ii) A Local authority which is ordered to pay the costs of an appeal...is a person aggrieved and may, therefore, appeal against the decision;
(iii) "person aggrieved" does not include the Secretary of Tenants' Association, who is neither the owner nor the occupier of a compulsorily re-acquired property.
(iv) A Local Planning Authority was not a "person aggrieved" who can appeal against a decision of a court of summary jurisdiction quashing an enforcement notice.
We have culled out these comments as they appear, at least remotely, to be relevant to the facts of the present matter.
30. Keeping in mind that we have to act within the scope of the Customs Act, the following two extracts from Venkataramaiya's 'Law Lexicon and Legal Maxims (2nd Edn.) seem to be relevant :-
"The true principle is to determine whether the applicant has an interest distinct from the general inconvenience which may be suffered by the law being wrongly administered." - Thiruvengadam v. Muthu Chettiar, A.I.R. 1970 Mad. 34 at p. 37: (1969) 1 MX J. 143.
The term "aggrieved" is nowhere in the Criminal Procedure Code, nor is there any indication of the kind of grievance which may qualify a man to complain. Any fanciful or sentimental grievance would not suffice; it must be such a grievance as the law can appreciate, it must be what has been termed a legal grievance, and not a start pro ratione voluntas reasons. It is obviously impossible to lay down any inflexible rule for determining in every case whether complainant is a person aggrieved by the offence alleged; the answer to the question must depend upon the nature of the offence and upon the special circumstances of each case. When the offence charged is bigamy on the part of the wife, the husband is undoubtedly a person "aggrieved" within the meaning of Sec. 198, Cr. P.C. corresponding to Cl. (c) of Section 198 of Code of 1973. - Daem Sardar v. Batu '' Dhali, 3 Cr. LJ. 187 at p. 189."
31. Both HPF and Northern Plastics cited case law. We proceed to go through the same to see whether the ratio of these judgments would help us in arriving at a decision in these matters on the point whether HPF can be considered as "persons ag- -grieved" entitled to file an appeal before us. Shri Sanghi relied on S.P. Gupta (SC) supra, and submitted that this judgment was passed by a Bench of seven Judges of the Supreme Court and should be followed hi this case. We perused this judgment with greatest respect. The matter was a litigation affecting judiciary and the questions before the Hon'ble judges related to the validity of the transfer of the Chief Justice of Patna High Court to the Madras High Court; to the validity of non-extension of promotion to an Ad-ditional Judge of the Delhi High Court and to the validity of the Circular of the Union Law Minister to all States. The issues involved were:
(i) Locus standi of lawyers to file writ petitions by way of public interest litigation.
(ii) Independence of Judiciary.
(iii) Validity of Union Law Minister's Circular dated 18-3-1981.
(iv) Nature of power to appoint/transfer High Court Judges and procedure to be followed - consultation with constitutional functionaries; Consent of concerned Judges etc.
(v) Validity of transfer of Judges from one High Court to another - Matters to be taken into consideration, viz. public interest, personal inconvenience, regional language, consent of concerned Judge etc.
(vi) Other incidental legal aspects like privileged documents, See Pt. D. Interpretation of Constitution, Constitutional conventions etc.
32. It is the first issue examined by the Hon'ble Supreme Court that is relevant to the present proceedings. It was held in the Judgment of the Supreme Court that lawyers had interest and locus standi to file the petition and they could not be told off at the gate. We note that the matter was one of public interest litigation and the petition filed before the Supreme Court was one by practising lawyers raising important questions relating to independence of judiciary. The Hon'ble Judges in para 25 of the Judgment observed that "practising lawyers have a vital interest in the independence of the judiciary and if any unconstitutional or illegal action is taken by the State or any public authority which has the effect of impairing the independence of the judiciary, they would certainly be interested in challenging the constitutionality or legality of such action. They had clearly a concern deeper than that of a busybody and they cannot be told off at the gates." Concurring with these observations, Hon'ble Mr. Justice Tulzapurkar observed that the practising lawyers, who are nothing short of partners in the task of administration of justice undertaken by the Judges, are vitally interested in the maintenance of a fearless and an independent judiciary.
33. These observations were made when the question of locus standi came up. The independence of judiciary, Constitutional rights and other exalted questions were before the Bench. The entire discussion that took place was with reference to the Constitution of India. We cannot claim any such scope, our powers arising out of Customs Act and its provisions.
34. We had earlier referred to Shri Sanghi's submission that the Tribunal has a wider scope in interpreting the term 'any person aggrieved' as compared with the High Courts under Article 226 of the Constitution. The Supreme Court's Judgment in Gupta's case (supra) has recorded reasons for accepting the locus standi of the petitioners. In our opinion such are not the considerations in the matters before us. What the HPF may incur as a result of the Collector's order is a possible set back by way of competition. The Government of India whose undertaking is HPF, have full powers to amend the law to ban imports of the subject goods by any party other than HPF and it requires minimum legislation to do so. It would, therefore, prima facie, appear that to extend the meaning of the term "any person aggrieved" to include HPF would go beyond the intention of the Legislature. We examined the earlier judgments of the Tribunal on the same or similar questions and came across the following judgments cited during the course of hearing.
35. The two judgments in Hindustan Aeronautics Ltd. (1983 (14) E.L.T. 2012) and in Collector v. Narendra P Umrao [1984 (15) E.L.T. 275 (Tri.)] do not help. In HAL, the Tribunal held that the Dept. merely writing a letter for voluntary payment of duty is not a cause for grievance. In Umrao, die Tribunal was only examining whether a Collector could be an aggrieved person and held that he was not.
36. In the judgment in Pofychem Ltd. [1987 (30) E.L.T. 1007] the Tribunal examined the question as to the right to appeal. In that matter the Tribunal held that only orders affecting the rights and interests of a person can be challenged by that person. In that case there was said to be an agreement between Polychem Ltd. and the Importer.' Polychem Ltd. purchased goods from Kamahi Engg. Corporation Ltd., after importation. The Tribunal held that Polychem had no right of appeal against the order which confiscated the goods and imposed penalty.
37. Shri Sunder Rajan, the learned DR referred to a judgment of CEGAT in Mahendra and Mahendra v. CCE (1983 E.L.T. 974). This judgment dealt with a question as to who can be treated as "aggrieved person." The Bench held that as the term "person aggrieved" has not been defined in the Act or the Rules, the said term should be understood in its normal meaning and in the context of the Central Excise Act. The Tribunal held that Mahendra and Mahendra (who indirectly suffered because they were the purchasers of the goods) had no right of appeal.
38. In addition to these judgments of the Tribunal, the judgment of the Bombay High Court in Atlas Exporters and Anr. v. K.V. Iraniraya [1989 (40) E.L.T. 3 (Bom.)] was also brought to our notice. The High Court was examining the word "person aggrieved" in relation to the Handbook on Import and Export Procedure. While doing so they referred to a judgment under the English Law and observed that a person aggrieved cannot be equated with a party who is not pleased with an order passed. It has to be a person whose rights have been adversely affected. In appeals before us it is the correctness of the Collector's order which can be questioned. The rights of parlies can be agitated only in Civil Courts.
39. Much was said about the judgment of the Hon'ble Supreme Court in Bar Council of Maharashtra v. M.V. Dabholkor (AIR 1975 SC 2092). Therein the question arose whether the Bar Council was a "person aggrieved." The Supreme Court in para 30 observed as follows:
"The Bar Council is "a person aggrieved" for these reasons. First, the words "person aggrieved" in the Act are of wide import in the context of the purpose and provisions of the Statute. In disciplinary proceedings before the disciplinary committee there is no lis and there are no parties. Therefore, the word "person" will embrace the Bar Council which represents the Bar of the State. Second, the Bar Council is "a person aggrieved" because it represents the collective conscience of the standards of professional conduct and etiquette. The Bar Council acts as the protector of the purity and dignity of the profession. Third, the function of the Bar Council in entertaining complaints against advocates is when the Bar Council has reasonable belief that there is a prima facie case of misconduct that a disciplinary committee is entrusted with such inquiry. Once an inquiry starts the Bar Council has no control over its decision. The Bar Counsel may entrust it to another disciplinary Committee or the Bar Council may make a report to the Bar ouncil of India. This indicates that the Bar Council is all the time interested in the proceedings for the vindictation of discipline, dignity and decorum of the profession. Fourth, a decision of a disciplinary committee can only be correct by appeals as provided under the Act. When the Bar Council initiates proceedings by referring cases of misconduct to disciplinary committee the performance of its functions under the Act is interested in the task of seeing that the advocates maintain the proper standards and etiquette of the profession. Fifth, the Bar Council is vitally concerned with the decision in the context of the functions of the Bar Council. The Bar Council will have a grievance if the decision prejudices the maintenance of standards of professional conduct and ethics."
40. We note, with great respect, that the special circumstance of the matter resulted in the finding contained in the judgment. The SC observed that the Bar Council represents collective conscience of the standard of professional conduct and etiquette. Further, in addition to other reasons, the Supreme Court also recorded that a decision of the disciplinary committee can only be corrected by appeals as provided under the Act. The Court took notice of the fact that the Bar Council's function is to see that the Advocates maintain proper standards and etiquette of the profession.
41. In para 27 of the same judgment, the Hon'ble Supreme Court observed that the meaning of the words "a person aggrieved" may vary according to the context of the statute. Taking note of the normal practice, the Supreme Court observed that the term should be given a more liberal approach in the background of the statutes which do not deal with property rights but deal with professional conduct and morality. In the present appeals, we are concerned with the correctness of the importation and not any professional conduct or morality. What is in issue is whether the HPF have got a right of appeal. The judgment of the SC in Dabholkor (supra), therefore, does not help HPF.
42. We have also respectfully perused the Supreme Court's judgment in Smt. Ganga Bai v. Vijaykumar and Ors. (AIR 1974 SC 1126). In this Judgment their Lordships made a clear distinction between a suit and an appeal. The legal position as found therein, is clear that the right of appeal is not an inherent right nor a natural right. The exercise thereof has to be traced to the concerned statute Conferring the right. In this context the Hon'ble Court observed as follows :-
"There is a basic distinction between the right of suit and right of appeal. There is an inherent right in every person to bring a suit of civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, however frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeal is quite the opposite. The right of appeal inherents in no one and, therefore, an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute".
43. Applying this ratio to the facts of the present case, it appears to us while HPF may have a right to file a suit they do not have a right to file an appeal against the Collector's orders.
44. Another judgment brought to our notice during the course of hearing was by the Supreme Court and reported in AIR 1976 SC 578 (J.M. Desai v. Roshan Kumar & Ors.). Both sides relied on this judgment. The ratio of this judgment is that grant of No Objection Certificate in violation of the Rules under the Cinema Rules, 1954 cannot be challenged by the rival in trade invoking the certiorari jurisdiction. No legal rights under the statutory provisions or under the general law can be said to have been subjected to or threatened with injury as a result of the grant of No objection Certificate to the rival trader. It was urged by Northern Plastics that since HPF are only rivals (or competitors), the ratio of the Supreme Court's judgment in J.M.Desai (supra) squarely applies. We, however, note that Shri Sanghi placed reliance on para 27 of the judgment which made a reference to the judgment in M.V. Dabholkor (AIR 1975 SC 2092) and argued that read as a whole, this judgment is in favour of HPF. We have respectfully and carefully read the entire judgment but do not find that the main ratio of the judgment, as recorded earlier, can be changed in any way.
45. We further note that in para 50 of this judgment, the Supreme Court recorded as follows :-
"The instant case falls well within the ratio of this Court's decision in Nagar Rice and Flour Mills v. N.T. Gowda, (1970) 3 SCR 846 : (AIR 1971 SC 246) wherein it was held that a rice mill-owner has no locus standi to challenge under Article 226, the setting up of a new rice-mill by another - even if such setting up be in contravention of Section 8(3) (c) of the Rice Milling Industry (Regulation) Act, 1958 - because no right vested in such an applicant is infringed."
46. All this discussion brings us to another part of the same judgment where the Hon'ble Court said:
"...The expression "aggrieved person" denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, its features can be descried in a broad tentative manner. Its scope and meaning depends On diverse variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or inquiry suffered by him. English Courts have sometimes put a restricted and sometimes a wide construction on the expression "aggrieved person". However, some general tests have been devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus standi or 'standing' to invoke certiorari jurisdiction."
47. Applying the ratio of the various judgments which we have referred to above and on examining the provisions of the Customs Act with special reference to those provisions which relate to filing of appeals, we hold that HPF is not a "person aggrieved" for the purpose of filing of these two appeals.
48. Before we part with this matter, we must also observe that if the Collector passed an order which is wrong, illegal or improper according to the Customs Law, our dismissal of these two appeals shall not lead to the perpetuation of such illegality which may be to the detriment of HPF or to the Government of India. Shri Sunder Rajan stated before us during the course of hearing that the Collector, Rajkot, acting under the orders of the Central Board of Excise & Customs, filed an appeal against one of the impugned orders (Rajkot), as provided by law. The Collector has a right to file a similar appeal against the other order also (Bombay). That appeal filed as a matter of statutory right shall be heard and the merits of the case shall be examined. At the time of our hearing the appeal was not yet received but it was stated to have been received today. The hearing of that appeal may be subject to the legal requirement of 45 days' time to the other party. Subject only to this, the merits of this matter shall be gone into as soon as possible. Therefore, HPF cannot have a grievance that by their appeals being dismissed in limine, their interests have been permanently injured.
49. With these observations, we dismiss both the appeals as not maintainable. The two Miscellaneous Applications are allowed.