Customs, Excise and Gold Tribunal - Delhi
Collector Of Customs vs Mirah Exports (P) Ltd. on 5 February, 1987
Equivalent citations: 1987(29)ELT401(TRI-DEL)
ORDER M. Gouri Shankar Murthy, Member (J)
1. This is an application dated 8-10-1985 for "stay of the operation of" the order in original in a proceeding, initiated by an application under Section 129D(4) of the Customs Act, 1962, (hereinafter, the Act), to be heard as if it were an appeal against the order of the adjudicating authority (i.e. the order in original) in terms thereof.
2. The facts alleged, in so far material, are, briefly -
(a) the Respondent imported 24 consignments of Ball Bearings during November, 1982 and January, 1983;
(b) the invoice values, not being acceptable, the Respondent was given an option to clear the goods on a provisional duty bond and the Respondent had availed of such option for clearance for home consumption as well as clearance under Section 59 of the Act after furnishing the requisite bonds with bank surety or cash deposit;
(c) a notice dated 31-5-1984 was issued to the Respondent along-with M/s. Skefko India Bearing Co Ltd. and Punjab Bearing Traders, alleging, inter alia,
(i) the existence of a special relationship between the Respondent and the overseas supplier through the media of M/s. Skefko India Bearing Co. Ltd. and Punjab Bearing Traders;
(ii) mis-declaration (of the values by the Respondent for the imports in question) rendering the goods liable to confiscation under Section 111(m) of the Act;
(iii) absence of I/Licences to cover the appropriate value rendering the goods liable for confiscation under Section 111(d) of the Act read with Section 3 of the Imports and Exports (Control) Act, 1947;
(iv) certain acts of omission and commission liable to be penalised by the levy of penalties under Section 112 of the Act; and requiring all three of them to show cause against the confiscation and levy of penalties proposed;
(d) in adjudication by the Additional Collector (Customs) it was held by his order dated 19-4-1985 (and issued on 9-5-1985) inter alia, that -
(i) the invoice prices can be accepted as the assessable value in terms of Section 14 of the Act, [whether under Clause (a) or (b) of the said provision not discussed however] despite other instances of sales of lesser quantities at higher prices;
(ii) no relationship, much less one that touches upon price, exists between the Respondent and the overseas supplier. ".... if the only relationship that exists between M/s. Skefko India and SKF (the overseas supplier) and that too that the former is an indenting agent of the latter, then it would be difficult to conclude that there is any relationship between the importers M/s. Mirah Exports (the Respondent herein) and the suppliers M/s. SKF through the media of M/s. Punjab Bearings and. Skefko";
and, in the result, he directed the goods in question to be assessed on their invoice values, discharging the notice to show cause;
(e) the Central Board of Excise and Customs would appear to have concluded that the aforesaid order in adjudication was not just, legal and proper and accordingly "ab initio void" for various reasons and in the purported exercise of the powers vested in the Board in terms of Section 129D of the Act, directed the Collector of Customs, Bombay, (and not the Additional Collector, who made the order in adjudication) by an Order No. 26R/85, dated 7-6-1985, "to make an application to the Customs, Excise and Gold (Control) Appellate Tribunal for setting aside the order of the Additional Collector of Customs and remand the case back for de novo examination and adjudication or the Appellate Tribunal exercise the powers to amend or modify the order of the Additional Collector of Customs with a view to rectify any mistake apparent by the facts on record. The Appellate Tribunal may be further requested to pass such order as may be deemed fit, legal and proper for determination of points relating to appropriate increase in assessable value of the goods under Section 14 of the Act, recovery of the consequential difference in duty and imposing fine in lieu of confiscation of the goods in question under Section 111(d) of the Act, read with Section 3(2) of Imports and Exports (Control) Act, 1947 as also under Section 111(m) of the Act and the imposition of personal penalty under Section 112 of the Act on all the parties charged in this regard in the relevant show cause notice.
"(7) The Board under the powers vested upon it under Section 129D(1) of the Act, further directs the Collector of Customs, Bombay, to make a request to the Appellate Tribunal for Stay of the operation of the aforesaid order of Additional Collector of Customs or in the alternative adequate safeguard for the revenue be taken as may be deemed fit in the form of a Bank guarantee or cash deposit.";
(f) the order would, however, appear to have been endorsed to the Additional Collector;
(g) an application purporting to be in Form No. C.A. - 5 and the instant application for stay of operation of the order in original, both signed by the Collector and not the Additional Collector, were the sequel;
(h) in the application for stay, with an affidavit sworn by the Collector in support thereof, it was alleged, inter alia, that -
(i) as a result of the order of the Additional Collector of Customs, the related Bills of Entry have to be assessed to final duty and bank guarantees and revenue deposits have to be released in favour of importers;
(ii) the Bills of Entry are required to be assessed to final duty. "In case of decision of CEGAT in favour of department would not enable the department to obtain cost recovery of revenue from the importers. However, redemption fine and penalty, if any, levied by the CEGAT may be recovered separately. However, this option did not exist with respect to customs duty finally assessed";
(iii) the importing firm "is an export house" and revenue implications are approximately Rs. 40 lakhs at the time of clearance of goods, the provisional duty bonds with back guarantees or duty deposit had been furnished. It is, therefore, requested that status quo, with respect to provisional duty bond and bank guarantee/cash deposit already recovered by Custom House may be allowed";
(iv) as there are similar other consignments from the same supplier, importer or different importers, it is likely that other importers would claim the benefit accruing from the decision of Additional Collector of Customs in the case".
3 Questions relating to the competence and maintainability of the instant application in terms of Section 129D of the Act arise as a prelude to a consideration of the application for the stay prayed for. After conclusion of the hearing of the Application on 2-1-1986, it was decided to re-hear it on the aforesaid issues and, accordingly, the matter was re-opened and heard on diverse dates elaborately and the hearing concluded on 8-7-1986.
4. Section 129D of the Act reads as follows :-
"129D. Powers of Board or Collector of Customs to pass certain orders. (1) The Board may, of its own motion, call for and examine the record of any proceeding in which a Collector of Customs as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Collector to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Board in its order. (2) The Collector of Customs may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority to apply to the Collector (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Collector of Customs in his order. (3) No order shall be made under Sub-section (1) of Sub-section (2) after the expiry of one year from the date of the decision or order of the adjudicating authority.
(4) Where in pursuance of an order under Sub-section (1) or subsection (2), the adjudicating authority or any officer of customs authorised in this behalf by the Collector of Customs, makes an application to the Appellate Tribunal or the Collector (Appeals) within a period of three months from the date of communication of the order under Sub-section (1) or Sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the Collector (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of Sub-section (4) of Section 129A shall, so far as may be, apply to such application."
5. It will be observed that -
(a) the provision envisages decisions made or orders passed by two tiers of officers. They are :
(i) "a Collector of Customs as an adjudicating authority", [Sub-section (1)]; and
(ii) an adjudicating authority subordinate to the Collector, [Sub-section (2)];
(b) while it is the Board that should satisfy itself of the legality or propriety of any decision or order of the Collector, [Sub-section (1)], it is the Collector who is to so satisfy himself in the case of a decision made or order passed by an adjudicating authority subordinate to him [Sub-section (2)];
(c) in the first of the two aforesaid cases (i.e. a decision made or order passed by a Collector as an adjudicating authority), once, on examination of the record, the Board is satisfied that the order or decision in question is either illegal or improper, the Board is to direct such Collector (meaning thereby the Collector who has made the decision or passed the order) to apply to the Appellate Tribunal [Sub-section (1)];
(d) in the second of the two aforesaid cases, similarly, (i.e. a decision made or order passed by an adjudicating authority subordinate to the Collector), it is such authority (i.e. adjudicating authority subordinate to the Collector) that is to be directed by the Collector to apply to the Collector (Appeals) not the Appellate Tribunal [Sub-section (2)];
(e) in both the cases, however, the application is for the determination of such points as may be arising out of the decision or order as may be specified by the Board or the Collector - as the case may be;
(f) an order under Sub-section (1) or (2) by the Board of the Collector cannot be made one year after the decision or order in question, [Sub-section (3)];
(g) the application pursuant to the order envisaged in Sub-section (1) or Sub-section (2) (by the Board of the Collector as the case may be) should be made within three months from the date of communication thereof to the adjudicating authority, [Sub-section (4)]; and
(h) when "the adjudicating authority or any officer of customs authorised in this behalf by the Ccllector of Customs" makes the requisite application to the Appellate Tribunal or the Collector (Appeals), such application shall be heard as if it were an appeal against the decision or order of the "adjudicating authority" and the provisions of the Act regarding appeals including the provisions of Sub-section (4) of Section 129A shall, so far as may be, apply to such application.
6. The question in relation to competence and maintainability of the instant application under the aforesaid provision, in the facts and circumstances of the case, are -
(a) Who is the appropriate officer who should have been directed to apply to the Tribunal in terms of Section 129D(D?
(b) Could the Collector of Customs be required to prefer the application when the decision made or order passed was by an Additional Collector of Customs?
(c) What is the effect of the endorsement of the Board's directive to the Additional Collector?
(d) Is the application preferred by the Collector of Customs in conformity with the provisions of the statute, and consequently competent and maintainable, when the decision or order in relation to which -the application was made was rendered by the Additional Collector of Customs?
(e) Were the points arising out of the decision or order and requiring determination by the Tribunal specified? If not, to what effect?
7. In terms of the statute, an Additional Collector is comprehended within "Collector of Customs" [Please see Section 2(8) of the Act and our reference to a larger Bench in 1983 (2) ETR 574 and the decision of the larger Bench in accord with our views therein reported in 1983 (2) ETR 537]. In the facts and circumstances of the case, therefore, wherever the word "Collector" occurs in Section 129D, the words "Additional Collector" could be substituted. It is not a question of mere administrative subordination of the Additional Collector vis-a-vis the Collector that matters, when the definition in Section 2(8) defines "Collector of Customs" to include "the Additional Collector of Customs" as well. The definition given in a statute is the key to the construction of the statute,, The definition is to be given effect to, unless there is anything repugnant in the context. When for the words "Collector of Customs", the words "Additional Collector of Customs" are substituted, there results no anomaly since there is nothing in the entire scheme and substance of the aforesaid provision that is repugnant to such a construction - not even in Sub-section (2). When the expression "Collector of Customs" in Sub-section (2) includes "the Additional Collector of Customs", "an adjudicating authority subordinate to him" will necessarily be an adjudicating authority subordinate to "the Additional Collector of Customs" and cannot, in any event, be the Additional Collector himself. If this were not so, the Additional Collector who was the adjudicating authority in this case is, obviously, an officer administratively subordinate to the Collector of Customs and the application should have been preferred to the Collector (Appeals) pursuant to a direction to that effect by the Collector in terms of Section 129D(2) rather than to the Appellate Tribunal in consequence of an order of the Board. That was not the case here and rightly so.
8. What then are the proceedings where the Board is empowered to call for the record to examine the legality or propriety in terms of Sub-section (1) of Section 129D? They are the proceedings in which a Collector or an Additional Collector of Customs had passed any decision or order "as an adjudicating authority". It is not, therefore, any record of a proceeding in which any Collector or Additional Collector of Customs had made any order but the record of a proceeding in which a decision or order had been made, as the case may be, by either of the aforesaid authorities as "adjudicating authority" [defined in Section 2(1) to mean "any authority competent to pass any order or decision under this Act, but does not include the Board, the Collector (Appeals) or Appellate Tribunal"]. Obviously, therefore, the Board was empowered to call for and examine the record of the proceedings in this case where an Additional Collector had passed a decision or order as an adjudicating authority, with a view to satisfy itself as to the legality and propriety of "any such decision or order".
9. The controversy centres around the consequential steps the Board is to take. Whom should the Board direct to apply to the Tribunal? Can it be any "Collector" (including within its ambit an "Additonal Collector") or is it the Collector or Additional Collector who "passed the decision or order" as an adjudicating authority (and no other) - alone that is to be directed?
10.(a) The clue lies in the words "such Collector", which in the context in which they occur, can be understood to refer only to that Collector or Additional Collector who passed the decision or order as an adjudicating authority and no other.
(b) (i) Generally, the word "such" refers only to what was previously indicated, characterised or specified. "Such" is an adjective meaning the one previously indicated or refers to something which has been said before;
(ii) "Such" has been defined by Webster as "having the particular quality or character specified; representing the object already particularized. "Being the person or thing or persons or things indicated". The ordinary meaning of the word "such" is of the character degree or extent described, referred to or implied in what has been said. [The Shorter Oxford Dictionary] "of the kind or degree already described or implied in context" [The Concise Oxford Dictionary].
(iii) when the word "such" is used before a noun in a latter part of a sentence, the proper construction in the English language is to hold that the same noun is being used after the word "such" with all its characteristics which might have been indicated earlier in the same sentence, [AIR 1959 ALL. 276 at 287 - Mohanlal v. Grain Chamber Ltd.]
(iv) "Such" like "said" generally refers to its last antecedant -per Lord Halsbury in 1896 A.C. 146 [Ex-parte Barnes], So also in Ellis v. Ellis [(1962), WLR 450], it was held the word "such" in an enactment must be taken to refer to some previous provision or matter, whatever the result of so doing may be [Referred to in Crais on statute Law - Seventh Edition - P. 90].
(c) This being so, the word "such" in the context in which it occurs, immediately preceding the word "Collector", has to be construed as descriptive, or referring to the Collector, (which expression, as already observed includes the Additional Collector) who has "passed the decision or order" "as an adjudicating authority";
(d) The contention of the applicant to the contrary, on the ground that the words used are not "the said Collector" "the same Collector" or "the identical Collector" and accordingly the jurisdictional Collector who had not made the decision or order could be directed by the Board and apply, is one that presumes to make a distinction where there is none. When the meaning of a word is clear, it is of no mement that other words signifying the same meaning had not been used and consequently the word used must have a meaning different from those others which could have been also used;
(e) The word "such" has been used in the same provision to qualify "decision or order" as well. Significantly, no such argument can even be thought of being advanced in regard to the construction in that context. It can. only refer to the decision or order made by the Collector as an adjudicating authority. It cannot be any decision or order made by an officer other than the Collector or Additional Collector as an adjudicating authority. A different construction for. the identical word when used to qualify "Collector" is hardly called for;
(f) Nor support drawn from Sub-section (it) of Section 129D wherein it is provided that "the adjudicating authority or any officer of Customs authorised in this behalf by the Collector of Customs may make the application.
(i) The contention is that the words "such Collector" in Sub-section (1) can only mean the jurisdiction Collector and not necessarily the Collector (or Additional Collector) who made the decision or order, seeing that it is competet for any officer of Customs authorised by the Collector to prefer the application in terms of Sub-section (it). And if an officer authorised by the jurisdictional Collector could prefer the application in terms of Sub-section (4), he himself can apply and accordingly be directed to apply in terms of Sub-section (1) as well.
(ii) To elaborate the argument - Sub-section (if) of Section 129D speaks of the competence of an officer of Customs authorised in this behalf by the "Collector of Customs", who would necessarily be the jurisdictional Collector, in the absence of words qualifying him as "in Sub-section (1) ["who has passed the decision or order" "as an adjudicating authority"]. There is a purpose in providing for this. The post of an Additional Collector, although in terms of the Act, equated with that of a Collector, may sometimes be abolished. That cannot be the case with the post of a Collector of Customs. There is always a Collector of Customs. Hence it is that it was competent for an officer of Customs duly authorised by him to prefer the application. If, therefore, such an officer authorised by the Collector could apply, it is equally competent for the Collector himself to prefer the application. In that view, he could, in terms of Sub-section (1), be also directed by the Board to apply in terms of Sub-section (1). Accordingly, "Such Collector" in Sub-section (1) can be the jurisdictional Collector as well.
(iii) It may be that the Collector (including the Additional Collector) who made the decision or order as an adjudicating authority may not be available for a variety of reasons. Even assuming, therefore, that it was the jurisdictional Collector of Customs that was meant in Sub-section (4) and not, necessarily, the Collector of Customs who made the decision or order as an adjudicating authority, does it follow that the Board could direct him regardless of whether he made the decision or order as an adjudicating authority in terms of subsection (i)? Whom is the Board to direct, if the Collector who made the decision or order as an adjudicating authority is unavailable on account of, say, his retirement or death? Is the provision to become a dead letter, impossible of being availed of in such a case? Conversely, could the Collector of Customs be directed to apply, even when the Collector or Additional Collector who made the decision or order is, as in this case, very much available and could easily be directed to do so?
(iv) While it is true that, in the construction of statutes, Courts lean against reducing it to a futitily, and, ordinarily, a provision in a statute is to be so construed as to make it effective and operative on the principle "Lit res magis valeat quam-per eat," [(i) AIR 1961 S.C. 1107 (M. Pentiah v. Veeramallappa Maddala), (ii) AIR 1959 S.C. 352 (C.I.T. v. Teja Singh)], it cannot be overlooked or forgotten that a question of construction, in the first place, should arise, as it would, if there is an ambiguity and admits of more than one meaning. "When the language is plain and unambiguous and admits of only one meaning, no question of construction arises, for the Act speaks for itself." [per Subba Rao J. in AIR 1963 S.C. 946 at 950 (State of Uttar Pradesh v.- Vijay Anand Maharaj); AIR 1955 S.C. 504 (Thakur Amar Singhji v. State of Rajasthan); AIR 1982 S.C. 1230 at p. 1233 - Om Prakash Gupta v. Vijendrapal Guptha], Says Gajendragadkar "If the words used are capable of one construction .only, then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act." [AIR 1957 S.C. 807 at p., 910 -Kantilal Sur v. Fararnnidhi Sadhu Khan], Thus, in deciding that a return of income signed by the son of an illiterate person was invalid, not having been signed or verified by the assessee himself as required in the Bengal Agricultural Income-tax Act, (Act II of 1946) it was observed by S.R. Das J. in AIR 1950 SC 265 at 270 (CIT Agri. v. Keshab Chandra Mondal) that hardship or inconvenience cannot alter the meaning of the language employed by the legislature, if such meaning is clear on the face of the statute. Earlier in AIR 1939 P.C. 47, (Pakala Narayanaswarny v. Emperor), Lord Atkin, speaking for the Board, had occasion to observe in the construction of "any person" in Section 162 of the Criminal Procedure Code, - "when the meaning of the words is plain, it is not the duty of Courts to busy themselves with supposed intentions." He added, "It, therefore, appears inadmissible to consider the advantages or disadvantages of applying the plain meaning, whether in the interests of the prosecution or accused",
(v) When can it be said that the language used in a statute is ambiguous? An ambiguity, as pointed out in 1928 A.C. 143 (H.L.) [Ormond Investment Co. v. Betts] exists where a phrase is equally open to diverse meanings. A provision is not ambiguous merely because it contains a word which in different contexts is capable of different meanings "[per Lord Reid in (1955) 2 All. ER 345 (H.L.) -Kirkness v. John Hudson & Co.]." Their Lordships of the Supreme Court had occasion to observe in AIR 1971 S.C. 1 [V.O. Tractoroexport v. Tarapore & Co.] "We are aware of no rule of interpretation by which rank ambiguity can be first introduced by giving certain expressions a particular meaning and then an attempt can be made to emerge out of semantic confusion and obscurity by having resort to presumed intention of the legislature to give effect to international obligations." Thus a. "submission made in pursuance of an agreement" in Section 3 of the Foreign Award (Recognition and Enforcement) Act, 1961, was held to be an actual submission or completed reference and cannot extend to a mere agreement to refer in an arbitration clause as well.
(vi) It can hardly be suggested that there is any ambiguity in Sub-section (1) of Section 129D. The provision is as plain as plain can be. "Collector of Customs" has been qualified to be that Collector of Customs who had made a decision or order as an adjudicating authority. It is "such Collector" that is to be directed by the Board to apply to the Tribunal. Where is the warrant to read "the jurisdictional Collector" in the place of the Collector of Customs who made the adjudication order? There is hardly any scope for the adoption of any other construction, just because it is a machinery provision, to save it from futility in certain contingencies not conceived of in the provision itself.
(vii) A construction contrary to the plain and unambiguous meaning of the words used in a statutory provision is not to be adopted merely because it may frustrate the legislative policy in enacting it. In AIR 1957 S.C. 912 and AIR. 1971 S.C. 1, amongst those cited herein-above, this was the precise contention. The short point raised in AIR 1957 S.C. 912 was if under Section 5(1) of the Calcutta Thika Tenancy Act (West Bengal Act II of 1949) as amended by the Calcutta Thika Tenancy (Amendment) Act (West Bengal Act VI of 1953), execution proceedings taken out by the Decree Holder against the' tenant could be entertained only by the Collector and not the Civil Courts. It is a question of competency and jurisdiction. While holding that the aforesaid provision, on its language, was wholly inapplicable to a land lord who holds a decree for ejectment in his favour, their Lordships repelled a plea for a beneficent construction of a welfare legislation in the light of the scheme and object of the Act, in these words :-
"The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise. When the material words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act whilst the order construction is likely to assist the achievement of the said policy, then the Courts would prefer to adopt the later construction".
In AIR 1971 S.C. 1 (cited supra) as well, the construction adopted was obviously defeating the purpose and object of the Protocol and conventions. Nevertheless, their Lordships felt bound by the mandate of the legislature "Once it has expressed its intention in words which have a clear signification and meaning, the Courts are precluded from speculating about the reasons for not effectuating the purpose underlying the Protocol and conventions".
(viii) Nor does the plain construction leave the Revenue without a remedy, since Section 129D is merely an additional and alternative, and a restricted one at that, to a full-fledged appeal to the Tribunal provided in Section 129A In all such contingencies where the Collector who made the order in adjudication is unvail-able and cannot be directed, a full-fledged appeal can be filed rather than the resort to the restricted right of application under Section 129D. There is nothing to prevent the Board from filing the appeal against the order of the Collector's Order if aggrieved thereby.
(ix) It is not difficult to perceive the intent, scope purport and effect of the words "the adjudicating authority or an officer of Customs authorised in this behalf by the Collector of Customs" who is to apply to "the Appellate Tribunal or the Collector (Appeals) within a period of three months from the date of communication of the order under Sub-section (1) or Sub-section (2) to the adjudicating authority". As already observed, the provision comprehends decisions or orders by two different tiers of officers of Customs in Sub-sections (1) and (2). In the first category where the order or decision is passed by the Collector of Customs (or an Additional Collector of Customs) "as an adjudicating authority", it is the Board that is to direct "such Collector" to apply to the Appellate Tribunal. The second category is where "an adjudicating authority subordinate to the Collector passed any decision or order". In this case, it is the Collector that is to direct "such authority" to apply to the Collector (Appeals). Sub-section (4) comprehends both the cases dealt with separately in Sub-sections (1) and (2). In fact, it refers to both the sub-sections in two places, in their sequence. Nevertheless it speaks compendiously of the communication of the order to "the adjudicating authority" only, in fixing the terminus for the commencement of the period of limitation. The words "adjudicating authority" may, therefore, be taken to mean an imply a Collector of Customs who passed the decision or order as an adjudicating authority (Sub-section 1) as well as an adjudicating authority subordinate to him (Sub-section 2). In either case the period is three months from the date of such communication to them, If, therefore, "adjudicating authority" in the latter part of Sub-section (4) can comprehend both the cases, it is, necessarily, to be given the same meaning when it occurs in the earlier part of the sub-section. Once this so, then what do the words "or any officer of Customs authorised by the Collector of Customs" mean and imply? "Collector of Customs" in this part of Sub-section (4) cannot obviously mean the Collector of Customs who, "as an adjudicating authority, has passed any decision or order" all over again. He is already comprehended in the preceding words "the adjudicating authority". If, therefore, the words "or any officer of Customs authorised in this behalf by the Collector of Customs" mean and imply any officer of Customs authorised in this behalf by the Collector of Customs other than the Collector of Customs who, as an adjudicating authority passed any decision or order, can it be that both of them - namely the Collector of Customs who adjudicated and who has been directed to apply in terms of Sub-section (1) as well as the officer of Customs authorised by the Collector of Customs who was not the adjudicating authority are 'competent to apply concurrently or simultaneously? Or the competence is in the alternative, one failing (on account of unforeseen reasons like death, retirement, etc. after having been directed to do so) the other? Once an adjudicating officer - a Collector of Customs, has been directed to apply, and before he obeys and carries out the directive he becomes altogether unavailable for any reason whatsoever, it is reasonable to conclude that the directive can be fulfilled by any Customs officer authorised by the Collector of Customs although he never made the order in adjudication. The directive has to be carried out and if the adjudicating authority is altogether unavailable, someone else, duly authorised, may carry it out. Not if he is available, as in this case and he, it was, that should have been directed to apply and applied accordingly. A construction to the contrary in favour of concurrent competence would produce the absurd result of both being competent simultaneously and leaving it to either of them to apply, regardless of the fact that only one of them could have been directed to apply in terms of Sub-section (1), and as if such direction was of no effect whatsoever.
(x) While, therefore, it is only the Collector, who as an adjudicating authority had passed the order or decision that could be directed by the Board to apply and no other and it is he alone that is competent to apply pursuant to that direction, if he becomes totally unavailable owing to any reason, the directive given to him can be carried out by any other officer of Customs duly authorised in this behalf by a Collector of Customs. Having due regard to the qualifying words in Sub-section (1), this can be the only plausible interpretation of Sub-section (4). In any view, it cannot be that the Board can direct a Collector of Customs who has not passed any order or decision to apply just because an officer authorised by him is also competent to apply in terms of Sub-section (4).
(g) In the premises, the conclusion is irresistable, in answer to queries (a), (b) and (d) in Para (6) supra, that the Board could not have directed any Collector (or Additional Collector) other than the one who, "as an adjudicating authority has passed any decision or order." Any such direction is contrary to the specific mandate of the legislature and cannot invest the officer so directed with the competence or authority to apply to the Appellate Tribunal in terms of Section 129D. The application made by the Collector, pursuant to such a direction is incompetent and not maintainable. Nor is there any question of any Collector or any person authorised by him being competent to apply when the Collector (or the Additional Collector) who was the adjudicating authority is available.
11. While, it may be that the order of the Board was endorsed to the Additional Collector, who was the adjudicating authority, the fact remains that it was not he, but the Collector that was directed to apply. The endorsement, if at all, shows that the Board was aware of the fact that the order in adjudication was, in fact, made by the Additional Collector. Nevertheless, the Board directs the Collector who never made the adjudication order rather than the Additional Collector. A mere endorsement, without more, to the Additional Collector cannot, in the circumstances, imply that the Board had acted in accordance with the categorical legislative mandate in Section 129D. The endorsement is of no effect whatsoever. The question in para 6(c) is answered accordingly.
12 (a) Nor did the Board specify any points arising out of the decision or order for determination by the Appellate Tribunal. One would look in vain for any points in the order of the Board. There is, singularly, no direction to apply for the determination of any specific points to the Tribunal Rather the direction to the Collector is to apply to the Tribunal for setting aside the order and remanding the case for a denovo examination or, in the alternative, for an amendment or modification of his order "with a view to rectify any mistake apparent from the facts on record". These are prayers more apposite for an appeal or for rectification or review. Finally, the Appellate Tribunal is to be requested to pass such order as it may deem fit, legal and proper "for the determination of points relating to appropriate increase in assessable value of the goods under Section 14 of the Act, recovery of the consequential difference in duty and imposing fine in lieu of confiscation". These are certain aspects of the case in relation to which points or questions may arise but not the points themselves. In fact, confiscation of the goods for mis-declaration under Section 111(m) as well as violation of import control restrictions [Section 111(d) read with Section 3 of the Imports and Exports (Control) Act, 1947] and levy of penalty under Section 112 of the Act were precisely what the Respondent was required to show cause against in the notice (dated 31-5-1984) that preceded the adjudication itself. What are the points in relation to these charges and penalties that require to be determined therein? There is no knowing. Again, even though the notice dated 31-5-1984 did not require the Respondent to show cause against increase in the assessable value at all or to any specified extent whatsoever and recovery of the consequential difference in duty, which, accordingly, were not the subject matter of the adjudication - not within its scope and ambit at all - the Tribunal is to be asked to determine "points" in relation to them, (b) Section 129D is a provision analogous to Section 130 of the Act, enabling reference by the Tribunal of questions of law arising from its order in the Appeal before it to the High Court. Upon such a reference, the jurisdiction of the High Court is to render advise on the legal issues raised. The High Court does not sit in appeal in a reference case so as to remand or modify the Tribunal's order. In fact, its jurisdiction being merely advisory, the High Court is not even competent 'to make an interlocutory order of Stay upon recovery [1986 (24) ELT 193 (SC) - CIT v. Bansidhar & Sons]. The matter continues in Seisin of the Tribunal to be disposed of in the light of the advice rendered by the High Court. Similarly, once the points duly formulated are referred to the Tribunal for determination, it is the advisory jurisdiction of the Tribunal -not its appellate jurisdiction - that is invoked. That the Tribunal is to hear the application, as if it were an appeal and all the provisions of the Act regarding appeals shall "so far as may be" apply to such application [Section 129D(4)] makes for no difference, seeing that the purport of the application is merely the determination of specified points and not the final disposal of the matter. Further all such points that may be germane for a final disposal may not be specified but only some that may require to be determined. The Tribunal is to determine only such points "as may be specified by the Board in its order" and not, necessarily, any others that may also arise for final disposal. While, therefore, the application may be heard as if it were an appeal, the provisions relating to appeals will apply "So far as may be". There is no question of a remand by the Tribunal. Modification or amendment of the order of the Collector (or Additional Collector) or rectification of an error apparent in it are all outside the pale of its jurisdiction. Nor can the Tribunal make any interim order for stay at all or as prayed for, since, even assuming that all the provisions relating to appeals do apply, Grant of Stay is not by virtue of any of them but by virtue of the inherent and incidental powers that inhere in the Tribunal in exercise of the jurisdiction to hear appeals and not those. After the points are determined and advice rendered, it is for the Collector who made the order as an adjudicating authority to dispose of the matter which continues in seisin with him.
(c) It has, accordingly, to be held that -
(i) no points requiring determination by the Tribunal have been mooted much less formulated in the order of the Board,
(ii) on the contrary, certain new aspects .of the case like e.g. increase in value and recovery of the consequential increase in the quantum of duty had been introduced for the first time although not within the scope and ambit of the adjudication. The order of the Board enlarges the scope of the enquiry in adjudication and is, hence, without jurisdiction in this regard, and
(iii) in any view, the Tribunal is incompetent to grant any stay at all or as prayed for.
The query in para 6(e) is answered accordingly.
13. Certain other issues raised can be disposed of briefly.
(a) (i) It was submitted that the questions of competence and maintainability of the application under Section 129D were being raised after the expiry of the period of limitation prescribed for filing it. Had they been raised prior to such expiry, they could have been, possibly, taken care of and such action as may be necessary to ward of and pre-empt such questions could have been taken. Now that the period of limitation has expired, and it be held that the application was not maintainable not being competent, it will result in the deprivation of any remedy, whatsoever, to the applicant - not even by way of an appeal - for which also limitation has expired. Such a contingency, being entirely due to the latches of the Tribunal, should not be allowed to come about or eventually result.
(ii) Such a contention assumes that there was no obligation on the part of the applicant to see to it that application preferred did not suffer from incompetence or otherwise was not maintainable and it was the duty of the Tribunal to indicate such fatal- errors in the application well before the expiry of the period of limitation so as to enable the applicant to rectify them, if he so chooses.
(iii) It was, as already stated, at our instance that the application for stay was reheard on the aforesaid issues arising in regard to the main application itself. Had we been merely content to dispose of the stay application, these issues would have survived for determination on hearing the main application itself. In such a case, can one be heard to say that these issues should have been decided before the expiry of limitation, so that, if need be, a separate application, by an officer who is competent could have been filed and such errors as there may have been rectified? It is for the litigant to have initiated appropriate proceedings in accordance with law within the period of limitation prescribed, at his peril. It is neither the duty, nor within the realm of either possibility or propriety for a Court or Tribunal to advise him well within limitation, on any question whatsoever or decide any issue so as to enable him to come back with a more appropriate application, before the expiry of the limitation prescribed. The argument is one of despair.
(b) Finally, leave was sought for an amendment of the application with a view to surmount the objections relating to competence and maintainability. One would have readily agreed to grant such leave in accordance with Rule 11 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules 1982, if it was a case of a mere rectification of an error in an application otherwise maintainable like for example, the amendment for supplying a signature by the appropriate applicant otherwise competent [Please see 1985 (21) ELT 462 - Government Wollen Mills v Collector of Central Excise, Chandigarh]. But then question, herein, is one of competence rather than one of a mere irregularity or error or omission. The only person directed and authorised by the Board was the Collector of Customs, who was not the adjudicating authority. He signs and files the application. He is not the person to have been directed and, hence, incompetent,, The Additional Collector who adjudicated and was, thus, the proper person to have been directed, cannot prefer the application or now sign the application, by way of amendment, not having been directed or- authorised to do so, The instant proceeding is like a suit filed by a person to whom no cause of action or right to relief had accrued. He could not, thus, figure as the Plaintiff. The direction to instant applicant by the Board was against the statutory mandate and, hence, incapable of investing him with any authority to file the application for an appropriate relief. The incompetence is incurable.
14. For all the foregoing reasons, it has to be held that the main application itself is incompetent and not maintainable. Accordingly, it is hereby dismissed. The application for Stay in an Application under Section 129D - not otherwise maintainable - also fails and is dismissed.
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Dated : 4-12-1986. (M, GOURI SHANKAR MURTHY) MEMBER.
D.C. Mandal, Member (T)
15. The learned Member (Judicial) has held that the application made by the Collector of Customs, Bombay to this Tribunal under Section 129D(4) of the Customs Act, 1962 (hereinafter referred to as the "Act") in this case is not maintainable as the Board issued direction under Section 129D(1) of the Act to the Collector of Customs, instead of to the Additional Collector of Customs, who passed the adjudication Order and the Board also did not specify the points for determination by the Tribunal. He has also held that the provision of Section 129D is analogous to Section 130, which enables the Tribunal to refer questions of law to High Court and the Tribunal has advisory jurisdiction under Section 129D and not appellate jurisdiction. According to him, the Tribunal is to give advice only on such points referred to it for determination as are specified by the Board in its order and not on any others that may arise for final disposal. He has also held that the Tribunal is not competent to grant any stay of operation of the order passed by Additional Collector as prayed for by the Collector of Customs in this application. I could not persuade myself to agree with the above views of my learned brother. My findings are given in the following paragraphs.
16. Confiscation of the goods under Section 111 and imposition of penalty under Section 112 of the Act can be adjudged under Section 122 ibid by a Collector of Customs, a Deputy Collector of Customs, an Assistant Collector of Customs and by a Gazetted Officer of Customs lower in rank than an Assistant Collector of Customs, depending upon the value of the goods liable to confiscation. The Customs Act has made provisions for filing appeals under Section 128 to the Collector (Appeals) trid under Section 129A to the Customs, Excise and Gold (Control) Appellate Tribunal, as the case may be, against the adjudication order passed under Section 122 of the Act. Under Section 129D(1) of the Act, the Central Board of Excise and Customs may, of its own motion, call for and examine the record of any proceeding in which a Collector of Customs as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Collector to apply to the Appellate Tribunal for determination of such points arising out of the decision or order as may be specified by the Board in its order. Subsection (4) of Section 129D provides inter alia that where in pursuance of an order under Sub-section (1), the adjudicating authority or any officer of Customs authorised in this behalf by the Collector of Customs, makes an application to the Appellate Tribunal within a period of three months from the date of communication of the order under Sub-section (1) to the adjudicating authority, such application shall be heard by the Appellate Tribunal as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of Sub-section (4) of Section 129A shall, so far as may be, apply to such application.
17. Section 3 of the Act specifies the classes of Officers of Customs. They are :
(a) Collector of Customs; (b) Collector of Customs (Appeals); (c) Deputy Collector of Customs; (d) Assistant Collector of Customs; and (e) Such other class of Officers of Customs as may be appointed for the purposes of this Act.
According to the definition in Section 2(1) of the Act, "adjudicating authority" means any authority competent to pass any order or decision under this Act, but does not include the Board, Collector (Appeals) or Appellate Tribunal. In Section 2(8) of the Act, it is stated that "Collector of Customs" includes an Additional Collector of Customs. According to Section 2(34) of the Act, "Proper Officer" in relation to any functions to be performed under this Act, means the officer of Customs, who is assigned those functions by the Board or the Collector of Customs. Section 5(2) of the Act provides that an officer of Customs may exercise the powers and discharge the duties conferred or imposed under this Act on any other officer of Customs who is subordinate to him.
18. In exercise of the powers conferred by Sub-section (6) of Section 129C of the Customs Act, 1962, read with Sub-section (1) of Section 35D of the Central Excises and Salt Act, 1944 and Sub-section (1) of Section 81B of the Gold (Control) Act, 1968, the Customs, Excise and Gold (Control) Appellate Tribunal has made the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982. Rule 2(g) of these Rules says that "Collector" means the Collector of Customs or the Collector of Central Excise, as the case may be. Rule 12(1) of these Rules lays down that in an appeal or an application by a person other than- the Collector or the Administrator appointed under Section 4 of Gold (Control) Act, the Collector concerned or the Administrator shall be made the respondent to the appeal or, as the case may be, the application. Sub-rule (2) of Rule 12 says that in an appeal or an application by the Collector or the Administrator, the other party shall be made the respondent to the appeal or, as the case may be, application. Sub-rules (1) and (2) apply inter alia to a proceeding transferred to the Tribunal under Section 13IB of the Customs Act.
19. As would be clear from paragraphs 17 and 18 (Supra), the "Additional Collector" is not specified as' an officer of Customs unde Section 3 of the Act nor can he adjudicate cases under Section 122 of the Act. He does not also figure in Rules 2(g) and 12 of the CEGAT (Procedure) Rules, 1982. The Additional Collector of Customs becomes an officer of Customs within the meaning of Section 3 of the Act and derives the power of adjudication under Section 122 by virtue of the definition of Collector of Customs in Section 2(8) of the Act, which says that "Collector of Customs" includes an Additional Collector of Customs. Therefore, in view of the fact that the Additional Collector has no locus standi as an adjudicating authority without the support of Section 2(8) and he adjudicates cases by virtue of the inclusive definition of Collector of Customs is Section 2(8) of the Act and the assignment of adjudication work under Section 2(340, the term adjudicating authority in Section 129D(1) of the Act will include the Collector of Customs, although the Additional Collector may adjudicate the case because of Section 2(8) and the allocation of work made by the Collector of Customs himself for smooth running of the work. In the present case, by a written order, the Collector of Customs, Bombay assigned the adjudication work to the Additional Collector of Customs due to the former's pre-occupation with other work. The Order No, S/l 4-208/81-C dated 3-6-1981 issued by the Collector of Customs, Bombay assigning the adjudication work to the Additional Collector of Customs reads as follows "As I am pre-occupied with a number of disciplinary cases and appeals besides some special work, all adjudications within my powers will be put up by the Groups to the Additional Collector Shri V.S. Naik until further orders."
20. In sub-paragraph (ix) of paragraph l0(f) of the Order written by the learned Member (Judicial), he has held the view that "Once an adjudicating Officer - a Collector of Customs, has been directed to apply, and before he obeys and carries out the directive he becomes altogether unavailable for any reason whatsoever, it is reasonable to conclude that the direction can be fulfilled by any Customs Officer authorised by the Collector of Customs although he never made the order in adjudication. The directive has to be carried out and if the adjudicating authority is altogether unavailable, some one else, duty authorised, may carry it out." He has reiterated the same view in Sub-para (x) also of that paragraph. He has, however, observed that if the adjudicating authority is available, it is he who should be directed to apply and. that a construction to the contrary in favour of concurrent competence would produce the absurd result of both being competent simultaneously and leaving it to either of them to apply. 1 do not agree with this observation of my learned brother. In my view, there is no absurdity in the concurrent jurisdiction or competence of the Collector of Customs and the Additional Collector of Customs when the latter derives power because of the Collector of Customs. The correct meaning of Sub-section (1) read with Sub-section (4) of Section 129D is that the Board can issue direction to the Collector of Customs, or alternatively to the Additional Collector of Customs where he has passed the adjudication order, but not to both of them simultaneously. There is, therefore, no question of "leaving it to either of them to apply." When the learned Member (Judicial) has held that the Collector of Customs can apply to the Tribunal if the Additional Collector becomes totally unavilable after directive has been given to him by the Board to apply, but before he could comply with the directive, there is no reason why i le, Board should be debarred from directing the Collector of Customs to apply ab-initio itself since under Sub-section (4) of Section 129D the Collector of Customs is competent to authorise any Officer of Customs in this behalf to make an application to the Tribunal. Sub-section (4) of this Section does not say that the Collector of Customs can authorise any Officer of Customs to apply only when the adjudicating Officer, who passed the order in adjudication is totally unavailable. This sub-section does not contain any such expression and I am unable to subscribe to such an interpretation. The plain meaning of this sub-section is that either the adjudicating authority or an officer of Customs duly authorised in this behalf by the Collector of Customs can apply to the Tribunal. The Collector of Customs is not supposed to authorise any officer of Customs to apply unless he receives a direction from the Board under Sub-section (1) of Section 129D, A harmonious construction of Sub-sections (1) and (4) of this Section would, therefore, warrant an interpretation that under Sub-section (1) the directive may be given by the Board to the Collector of Customs even when the order in adjudication has been passed by an Additional Collector of Customs by virtue of the function allocated to him by the Collector of Customs under Section 2(34) of the Act. An interpretation contrary to this will be too narrow a view, not in conformity with the intention of Section 129D of the Act and it will create anomaly between these two sub-sections.,
21. The learned S.D.R. Shri Ajwani has cited a number of judgments of the Supreme Court and High Courts in support of his arguments for harmonious interpretation and intention of Section 129D and the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules. He has relied on the judgments reported in AIR 1953 S.C. 394, AIR 1957 S.C. 628, AIR 1967 S.C. 1649, AIR 1969 S.C. 513, AIR 1969 Punjab and Haryana 270, AIR 1983 Punjab and Haryana 50, AIR 1969 Goa 6 and AIR 1980 M.P. 37. In AIR 1953 S.C. 394 at page 397 (Rao Shiv Bahadur Singh and Anr. v. The State of Vindhya Pradesh) the Hon'ble Supreme Court has held that it is incumbent on the court to avoid a construction, if reasonably permissible on the language, which would render a part of the statute devoid of any meaning or application, In the case of RIVLD. Chamarbaughwalla and Anr. v. Union of India and Anr. (AIR 1957 S.C. 628) and in L.C, Golak Nath and Ors. v. State of Punjab and Anr. reported in AIR 1967 S.C. 1643, it was held by the Supreme Court that the literal interpretation of an enactment has prima-facie preference, but to arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope and object of the whole. Act. In paragraph 5 of their judgment in the case of Management, Shahdara, (Delhi) Saharanpur Light Railway Co, Ltd. v. S.S. Railway Workers Union, reported in AIR 1969 S.C. 513 at page 518, the Hon'ble Supreme Court held: "In the light of these principles we ought, therefore, to give a literal meaning to the language used by Parliament unless the language or its literal sense gives rise to an anomally or results in something which would defeat the purpose of the Act." In AIR 1969 Punjab and Haryana 270 at page 283 (Smt. Dhan Devi and Anr. v. Bakshi Ram and Anr.), it was laid down that interpretation should lead to harmonious construction rather than inconsistency,, In AIR 1983 Punjab and Haryana 50 at page 54 (Chet Ram and Anr. v. Amin Lal and Ors.) it has been held that statute has to je read as a whole and a harmonious meaning in consonance with other provisions has to be given to each section and where two constructions are possible, the one which is likely to lead to the possibilities of such anomalous results is necessarily to be avoided. In AIR 1969 Goa 6 at page 11 (Govind Narayan Tilve v. Government of Goa, Daman and Diu and Ors.), it was held that sense of word should harmonise with context and promote the policy and object which the law makers had in view. Further, in Narsingh v. Kamandas and Anr. (AIR 1980 M.P. 37), the Hon'ble Madhya Pradesh High Court held as follows :-
"It is settled canon of construction that to arrive at the true meaning of any particular phrase in a statute, it has not to be read detached from the context. Words and phrases occuring in a statute are not to be taken in an isolated or a detached manner dissociated from the context."
22. An isolated and literal interpretation of Sub-section (1) of Section 129D creates anomaly between Sub-sections(1) and (4) of this Section as already explained in paragraph 20 (Supra). Such an interpretation makes the two sub-sections inconsistant and it will defeat the purpose of this Section. It will render Sub-section (4) devoid of any meaning- or application in certain situation. Under Sub-section (4) of Section 129D the Collector of Customs has been empowered to authorise any officer of Customs to apply to the Tribunal as directed by the Board under subsection (1). There is no question of his authorising an officer to apply to the Tribunal unless the Board directs him to apply to the Tribunal. The object of Section 129D is to set right an illegal or improper order or decision passed by a Collector of Customs as an adjudicating authority. This section empowers the Board to review such illegal or improper order and direct the Collector of Customs to apply to the Tribunal for the determination of such points arising out of the decision or order as may be specified by the Board in its order. Once the Board has exercised this power and has decided that an application should be made to the Tribunal, this decision to apply is to be implemented by issue of a direction to the Collector of Customs and then by the filing of an application in the manner laid down in Sub-section (4) of that section. As already stated earlier in this order, Collector of Customs is an officer of Customs specified in Section 3 of the Customs Act,, Section 122 of the Act empowers him to adjudicate cases for ordering confiscation under Section 111 and imposition of penalty under Section 112 of the Act. Additional Collector does not figure either in Section 3 or in Section 122 of the Act. He derives power of adjudication because of inclusive definition of Collector of Customs in Section 2(8) and the assignment of the adjudication work to him by the Board or the Collector of Customs under Section 2(34) of the Act. On a literal interpretation of Sub-section (1) of Section 129D, direction under this sub-section is to be given to the Additional Collector of Customs if he has passed the decision or order in adjudication. A situation may arise where such a direction has been given to Additional Collector, but before he has complied with the direction by applying to the Tribunal, the post of Additional Collector may fall vacant due to his transfer, retirement or death etc., or the post of Additional Collector may even be abolished and there may not be sufficient time to follow the alternative remedy of filing appeal under Section 129A of the Act. In a situation like this, there will be no compliance of the Board's directive and the very object of Section 129D will be defeated. A literal interpretation, as made by the learned Member (Judicial), will thus make Sub-sections (1) and Cf) of Section 129D inconsistant and anomalous and the very object of this section will be frustrated. Such a literal interpretation should be avoided in view of the various judgments of the Supreme court and High Courts cited in paragraph 21 of this order. Considering the ratio laid in these judgments (which are later than those relied upon by the Member, Judicial) and the aim and object of Section 129D of the Act, I am of the view that the Board could direct the Collector of Customs jnder Section 129D(1) to apply to the Tribunal in this case. There was nothing wrong on the part of the Board to give direction to the Collector of Customs and endorse a copy of the Additional Collector of Customs, who actually passed the adjudication order. Application to this Tribunal under Section 129D(4) of the Act could also be made by the Collector of Customs, as directed by the Board.
23. The learned Member (Judicial) has held that no points have been mooted for determination by this Tribunal. I find that the Board discussed the facts of the case and the reasons why it considered the Additional Collector's order as illegal and improper vide paragraphs (1) to (4) of its order No. 26-R/85 dated 7-6-1985 under Section 129D(1) of the Act. In paragraph 5 of that order the Board summarised the alleged errors committed by the Additional Collector and in para 6 of the order it gave direction to the Collector of Customs to apply to this Tribunal. The order speaks about undervaluation of imports and paragraph 6 thereof gives a direction to the Collector of Customs to apply for "determination of points relating to appropriate increase in the assessable value of the goods under Section 14 of the Act, recovery of consequential difference in duty and imposing fine in lieu of confiscation of the goods in question under Section 111(d) of the Act read with Section 3(2) of Imports & Exports (Control) Act, 1947 as also under Section 111(m) of the Act and imposition of personal penalty under Section 112 of the Act ...". As the Additional Collector of Customs held that the goods were not under-valued, the Board also directed the Collector of Customs to apply to the Tribunal to set aside the Order-in-original and remand the case to the Additional Collector for denovo examination and adjudication or the Tribunal exercise the powers to amend or modify the Additional Collector's order. The Board further directed the Collector to request this Tribunal for stay of operation of the Order-in-original passed by the Additional Collector. The Collector of Customs has applied to this Tribunal accordingly. I do not think that this does not meet the requirements of Section 129D of the Act. In the case of Collector of Customs, Cochin v. Emjay Enterprises, Bombay, reported in 1986 (8) ETR - 62, the Board issued a similar direction under Section 129D(1) stating the grounds for which it considered that the Collector's order was not legal and proper, but without listing out the points for determination by the Tribunal and the Collector made application under Section 129D(4) accordingly. In that case, this Tribunal entertained the applicationas an appeal, decided the matter and held that the goods were liable to confiscation and respondents were liable to a penalty. I do not see any reason why a similar treatment should not be given to the present application under Section 129D(4) filed by the Collector of Customs before us.
24. In the show cause No, F.No. SG-33/83A/S/10-50/84-LSIIB, dated 31-5-1984, M/s. Mirah Exports (P) Ltd. were asked to show cause and explain to the Collector of Customs as to why :
"(1) the goods detailed in Annexure 'A' should not be confiscated under Section 111(d) of the Customs Act, 1962 read with Section 3(2) of the Imports & Exports Control Act, and also under Section lll(m) of the Customs Act.
(2) penal action should not be taken against them under Section 112 of the Customs Act, 1962."
The Additional Collector of Customs, who adjudicated the case, held that the charges in the show cause notice failed and he did not confiscate the goods and did not impose any penalty on the respondents. In the show cause notice the respondents were not asked to show cause why the assessable value under Section 14 of the Act should not be appropriate!, increased and consequential difference in duty should not be recovered. However, in paragraph 5(a) of the show cause notice the charge of undervaluation and consequent amount of duty sought to be evaded has been levelled against the respondents. After the undervaluation is established, consequent increase in the assessable value and payment of duty on the basis of increased assessable value become imperative if the goods ate cleared by the importer. This point will be required to be looked into when the merit of this appeal is gone into. At the present stage when the maintainability of the appeal is under consideration, this point is not a determining factor. When this application under Section 129D is otherwise maintainable, it can not be rejected on the basis of this point.
25. The provision of Section 129D is not analogous to Section 130 of the Act. It has got appellate jurisdiction. Sub-section (4) of Section 129D says that an application made to the Tribunal under this sub-section shall be heard by the Appellate Tribunal as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of Sub-section (4) of Section 129A shall apply to such application. Further, (i) a reference to High Court comes back to the Tribunal with answers to the questions for final decision under Section 130D by the Tribunal. In the case of application under Section 1290(4), the Tribunal does not send the matter back to the Board for final decision, but the matter is decided by the Tribunal itself and against the decision of the Tribunal a reference to High Court or appeal to the Supreme Court, as the case may be, would lie. (ii) on a reference under Section 130 of the Act, the High Court advises on points of law only, but on an application under Section 129D(4) this Tribunal is to give decision on facts as well as on points of law. (iii) under Section 130(3) of the Act, High Court can call for a reference from the Tribunal, but the Tribunal has no such power under Section 129D. The Tribunal has, therefore, power to decide not only those points which are referred to it for determination, but also on any other points that may arise for final disposal. Consequently, it can remand the matter for de-novo examination and can make any interim order on the application including stay of operation of the order applied against, if deemed proper. The application having the status of an appeal, it is within the competence and jurisdiction of the Tribunal to amend, or modify the order passed by the Collector or Additional Collector of Customs.
26. In view of the foregoing discussions, I hold the view that this appeal, which is an application under Section 129D(4) of the Act, as well as the Stay petition filed by the petitioners are maintainable in law.
27. I have held in paragraph 25 that this Tribunal is competent to grant stay of operation of the order of the Additional Collector of Customs. But this stay petition has since become infructuous as the petitioners filed a Writ Petition in Bombay High Court (Writ Petition No. 815 of 1986 - Mirah Exports Pvt. Ltd. v. Union of India and Ors.) and obtained a rule on 9-6-1986 in terms of prayers (B)(i), (ii) and (iii) (excluding interest), which are as follows :
"(B) that this Hon'ble Court be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India, ordering and directing respondents :
(i) to refund to the Petitioners the amount of Rs. 2,11,471.93 being the excess duty paid on the 10 consignments covered by the Bills of Entry Nos. 2350/39, 2350/40, 2198/56, 2198/59, 1909/78, 1909/39, 2496/68, 2350/51, 1909/79, 2350/41 (including in Ex. 'H' hereto);
(ii) to refund to the Petitioners the amount of revenue deposit paid by them of Rs. 3,69,128.25 with interest thereon at the rate of 18% per annum in any event ' from 9th May, 1985 till the date of actual refund;
(iii) to discharge the Bank guarantee of Rs. 2,87,850/-given by them;"
The stay petition filed by the petitioners before this Tribunal, which bears No. CD/Stay/1065/85-A, is, therefore, to be dismissed as infructuous. I order accordingly.
28. We have not heard the appeal on merits. No order on merits thereof can be passed at this stage. The other points raised by the learned Advocate for the respondents during the hearing, viz. prayer in the application is impossible to be performed, Tribunal is not competent to grant relief claimed, imposition of fine and penalty by the Tribunal etc. are connected with merits of the case and as such, I refrain from giving any findings on the same. These points may be argued by the respondents, if they so desire, when the appeal is heard on merits.
29. 1 agree with observations made by Member (Judicial) in paragraph 13(a) of his order. As I have held that the main application under Section 129D(4) as well as the stay petition are maintainable in law, the point discussed in paragraph 13(b) of his order is not considered by me to be relevant.
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Dated : 6-1-1987. (D.C. MANDAL) MEMBER (TECHNICAL) K.S. Venkataramani, Member (T)
30. I have carefully perused the orders prepared by my learned brothers. Section 129 of the Customs Act, 1962 is in the nature of machinery provision and it is well settled that a machinery provision in a fiscal statute should be so interpreted as to make the charging provision of that statute effective. In the case of K.P. Varghese v. I.T.O. Ernakulam and Anr. [131 ITR 597 -AIR 1981 SC 1922], the Supreme Court observed that, "... The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formula because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and, as pointed out by Lord Denning, it would be idle to expect every statutory. provision to be "drafted with divine prescience and perfect clarity". We can do no .better than repeat the famous words of Judge Learned Hand when the said :
"... it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable source of interpreting the meaning of any writing; be it a statute, a contract or anything else. But, it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning."
In McDowell and Company Ltd. v. Commercial Tax Officer (59 STC 277) the Supreme Court reviewing all the earlier cases reiterating the same had expounded that tax measures should not be interpreted as to provide for evasion of taxes. In C. Arunachalam v. Commissioner of Income tax [I.L.R. 1984 (2) Karnataka 1387],a Full Bench of the Karnataka High Court reiterating the progressive rule of construction of., statutes has expressed thus :
"So far as the fiscal statutes are concerned, we must remember one more principle. The provisions in a fiscal statute are not to be so construed as to furnish a chance of escape and a means of evasion. In case of doubt, the fiscal statute should be construed in favour of and beneficial to the subject."
Having regard to the above guidelines laid down by the Supreme Court with regard to the interpretation of machinery provision in fiscal statute, I am in agreement with the views expresse by learned brother Shri D.C. Mandal, Member (Technical).
Sd/-
Dated : 28-1-1987. (K.S. VENKATARAMANI) MEMBER (TECHNICAL) FINAL ORDER
31. In accordance with the views of the majority of the Members hearing and deciding this matter, it is held that the application in question under Section 129D of the Customs Act, 1962 is maintainable.
32 The application for stay, however, is dismissed.
33. Let the application be posted in due course for hearing on merits.