Customs, Excise and Gold Tribunal - Delhi
B. Arun Kumar And Co. vs Collector Of Customs on 12 April, 1996
Equivalent citations: 1996(84)ELT34(TRI-DEL)
ORDER
U.L. Bhat, J. (President)
1. The two appeals are filed by the assessee and the Collector of Customs respectively. The cross-objections are filed by the Collector of Customs in the appeal filed by the assessee. The appeal was disposed of by the Calcutta Bench of the Tribunal who transferred the cross-objection to Delhi Bench to be dealt with by the concerned Special Bench. That is how the cross-objection has survived. The Collector has filed the latter appeal precisely on the same grounds as those raised by him in the cross-objection in the former appeal. The learned counsel for the assessee has raised a preliminary objection to the effect that neither the cross-objection nor the appeal filed by the Collector is maintainable. We have heard both sides.
2. Chapter XV of the Customs Act, 1962 (for short the Act) deals with the provisions relating to appeal, revision, reference and other related matters. Section 129A to 129C deal with the appeals to the Appellate Tribunal. SubSection (1) of Section 129A enables any person aggrieved by any of the orders specified in the succeeding clauses to appeal to the Appellate Tribunal against such order. Clause (a) refers to the decision or order passed by the Collector of Customs as an adjudicating authority. There can be no doubt that an assessee aggrieved by an order passed by the Collector of Customs as an adjudicating authority has the right to appeal to the Tribunal. There is also no dispute that the department, if aggrieved by the order in appeal passed by the Collector as the original authority cannot file an appeal under sub-section (1) of Section 129A of the Act. Sub-section (2) deals with appeal which could be filed by Collector of Customs. He can file an appeal against the order passed by the Appellate Collector of Customs under the erstwhile Section 128 or Collector (Appeals) under Section 129A. The juxtaposition of sub-sections (1) and (2) make it clear that while sub-section (2) deals with appeals which can be preferred by Collector of Customs, sub-section (1) deals only with appeals which can be preferred by aggrieved persons other than Collector of Customs. That is because the Collector of Customs who himself is the adjudicating authority in a given case cannot be regarded as a person aggrieved by his own order. The remedy lies in bringing the matter to the notice of the Central Board of Board of Excise & Customs for action under Section 129D of the Act. Subsection (1) of Section 129D enables the Board, of its own motion, to call for examination record of any proceeding in which a Collector of Customs as an adjudicating authority has passed any decision or order under the Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order. The Board 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. The adjudicating Collector, therefore, can move the Appellate Tribunal against his own order only if so directed by the Board and not otherwise.
3. Cross-objection is dealt with by sub-section (4) of Section 129A of the Act. The provision reads as -
"(4) On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file within forty five days of the receipt of the notice, a memorandum of crossobjections verified in such manner as may be specified by rules made in this behalf against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3)".
The party against whom the appeal has been preferred has the right of filing cross-objection within the period referred to above and such cross-objection shall be disposed of as if it were an appeal represented in time. It is contended that while Collector of Customs has no right of filing appeal against his own order under Section 129A of the Act, he has the right of filing a memorandum of cross-objection against his own order on receiving notice of appeal filed by the assessee. This contention is rebutted by the assessee. According to him the right of filing of cross-objection is necessarily restricted to the person who has the right of filing appeal and since the Collector of Customs has no right of filing an appeal under Section 129A of the Act he cannot have the right of filing cross-objection otherwise.
4. Our attention is invited to certain decisions based on Order 41, Rule 22 of CPC. This provision enables the respondent in an appeal, though he may not have filed an appeal, not only to support the decree on any ground decided against him in the Court below, but also to take any cross-objection to the decree which he could have taken by way of appeal. These decisions have held that cross-objection can be filed by a party on whom law confers the right of filing appeal and not otherwise. In Thakur Abhlakh Bakhsh Singh and Ors. [AIR (29) 1949 Oudh 391 (1)] a Division Bench of High Court of Oudh held so observed as follows:-
"Where the law confers no right upon a party to file an appeal, it follows that he is precluded from filing cross-objections to the appeal."
Seen also AIR 1986 P. 78. We also refer to the observation of the Allahabad High Court in Kanpur Industrial Works v. CIT U.P. [1966 (59) ITR 409] to the following effect:
"If he could not file an appeal he cannot file the cross-objection, which is merely a substitute of an appeal".
5. The Collector of Customs, as original adjudicating authority admittedly has no right of filing appeal before the Appellate Tribunal against his own order. The provision in Section 129D of the Act enables the Board to direct the adjudicating Collector of Customs to apply to the Tribunal for determination of points arising out of the decision or order. The application has to be disposed of as if it is an appeal against the decision of the adjudicating Collector. The duty of adjudicating Collector, of applying to the Tribunal cannot be regarded as a right of appeal. Since the Collector of Customs has no right of appeal against his own order, sub-section (4) of Section 129A of the Act cannot be regarded clothing him with jurisdiction to file cross-objection against his own order. In other words, this provision cannot enable the adjudicating Collector of Customs, who cannot file an appeal under sub-section (1) of Section 129A, to file cross-objection against his own order under sub-section (4) of Section 129A in an appeal filed by the assessee. Therefore, the cross-objection is not maintainable and is dismissed.
6 The Collector of Customs, in the impugned order held against the assessee on the ITC angle but accepted the invoice price for determination of the assessable value for the purposes of determining the duty. This part of the order is sought to be challenged in the application (or appeal) filed by the Collector of Customs under Section 129D(1) of the Act. According to the assessee this appeal is not maintainable since it was filed on the direction of the Board which relied not on the record of the proceedings before the Collector of Customs but on extraneous materials. The first part of para 5 of the order of the Board reads:-
"The Board, on going through the records of the case, is satisfied that the Collector's order accepting the declared value of the goods is not proper and legal for the following reasons:-
'Sub-para (a) refers to import of similar goods from Malaysia by STC at Calcutta in April 1986 at a higher price and the import of similar goods at a higher price at Bombay. Sub-para (b) refers to another import at Calcutta at a higher price. Sub-para (c) states that the Collector of Customs has erred in accepting the CIF value which was very low as compared to the price at which the same goods had been imported from the same region at the same port during the same period".
The positive averment in the order of the Board is that the reasons referred to in sub-paras (a), (b) and (c) of para 5 of the order were traced from the records of the case. We are, therefore, justified in proceeding on the basis that the records of the case adjudicated by the Collector of Customs contain materials from which the particulars given in sub-paras (a), (b) and (c) were culled out. The submission made by the learned counsel for the assessee that since the impugned order does not refer to these materials, we must infer that these materials are not part of the record, is not sustainable, particularly in view of the averment of the Board referred to above and in the absence of any material indicating that the Board had called for materials other than those contained in the record of the adjudication and the grounds mentioned in sub-paras (a), (b) and (c) were gathered from such extraneous or additional materials.
7. We are not satisfied that the order passed by the Board is based not on the record of the case but on the basis of extraneous materials. Therefore the objection against the application or appeal filed by the Collector of Customs is overruled.
8. The cross-objection in C/37/87-A is dismissed. The preliminary objection against maintainability of appeal No. C/3528/87-A is overruled. Appeal is posted for hearing 1-5-1996.