Customs, Excise and Gold Tribunal - Delhi
Collector Of Customs And Ors. vs Arvind Exports (P) Ltd. And Ors. on 7 November, 2000
Equivalent citations: 2000(72)ECC773
ORDER Sidharath S. Sekhon, Member (T)
1. The Advocates for the respondents had preliminary objections on the admissibility of the subject appeals filed by the Revenue. These were:
(i) All appeals are filed against remarks and observations made in the note sheets in different office files. There is no decision or order passed by a Collector in these cases as an adjudicating authority and he relied on CC v. Metro Exporters P. Ltd. .
(ii) Appeals are filed and signed by Assistant Collector of Customs based on the letter of Authority from the Collector, who has no power to delegate under Section 129D. The counsels relied upon.
Collector v. MM Rubber , Collector v. Lakshmi & Co. 1999 (34) RLT 558, State of M.P. v. Bhupendra Singh 2000 (88) ECR 542, Collector v. Indian Oil Corporation , Collector v. Kesharwani Zarda Bhandar .
(iii) The CBEC has passed common review order under Section 129-D(i) i.e. Order No. 87R to 88R dated 1st October, 1983 passed by Sh. J. Dutta. This is invalid as facts of Arvind Exports & Pacific Exports are totally different. There was no revalidation of licences.
3. A perusal of the appeal paper books revealed that there is no formal order in original passed by the Commissioner as prescribed under Section 124 of the Customs Act, 1962. The order which are proposed to be appealed against which are a bunch of Note-sheets containing the noting of the various officers on various dates including the Collectors comments and orders thereon. In these Note-sheets it is observed that the Collector has approved under his signature the proposal at "X" on N.S. IV ante and this N.S. IV ante reads as follows:
Though the case records have been sent to the Ministry for review no action has so far been taken. In the circumstances we may allow clearance of the goods accepting the licence. If Ministry decides otherwise the case could be reviewed by the Collector.
In another Note-Sheet the Collector on 6.8.82 has given a noting "I agree" on a discussion which was held with him as recorded by A.C. (A)(l). The Collector in another case has approved the proposal after accepting the Licence produced when the file was put up to him. In another case the Collector has signed a note without comments and this note above proposed the drafting of the review action initiated in respect of other identical cases and in some other cases the Collector has given detailed findings and arrived at a conclusion that in the facts and circumstances the licence is acceptable.
4. We have considered the preliminary submissions made and have perused the Note-sheets annexed in the paper books of appeals and after considering the submissions we find that:
(a) Section 129D confers powers on the Board or on the Collector of Customs to pass certain orders which do not fall either in the category of appeal or review, but provide for a peculiar procedure which is sui generis. It empowers the Board to call for and examine the records of any proceedings in which the Collector (now Commissioner of Customs) as an adjudicating authority has passed any decision or order under the Customs Act. Chapter XV as: it stood before the amendment in 1980 was titled "Appeals and Review", Sections 130 and 131 provided for the revisional powers of the Board and the Central Government. The powers of the Central Government were abolished by the amendment. The Board vide section as it stood prior to introduction of Section 129D and under Section 130 could call for and examine the record of any proceedings in which the Collector of Customs has passed any decision or order under the Customs Act. The proceedings were not limited to "any decision or order" passed by the Collector "as an adjudicating authority". Therefore a view is possible that formal adjudication order are only covered under Section 129D as has been taken: in the case of Collector of Customs v. Metro Exporters (P) Ltd. .
(b) In the Metro Exports (P) Ltd. case (supra) the facts are similar to the present case. That a licence was produced before the officers at the time of filing the Bill of Entry, some queries were raised and answered and the licence was put up to the Collector by the Group Officer and was found by the Collector to be acceptable. Therefore, it was held that no "LIS" arose inter se between the Department and the importer and hence there was no need to involve adjudicating proceedings under Section 124 read with 122 of the Customs Act. The Bench found that the entire debate in the matter was confirmed to the department and the orders passed by the Collector were in the nature of an administrative/executive proceedings. No formal orders in original was passed, therefore no decision was taken by the Collector as an adjudicating authority. Therefore, the Board's order in that case was beyond jurisdiction and applications made pursuant to the same are not maintainable in CEGAT.
(c) The SRB, on the other hand in a similar situation in the case of CCE Cochin v. Emjay Enterprises, Bombay 1987 (12) ECR 490 has held:
4. We have heard both sides and have carefully considered their submissions and the records of the case. The Respondents made a preliminary objection saying that the order of the Collector dt. 12.4.83 was an administrative order, that it had not been made by the Collector as an adjudicating authority" and that therefore, the Board was not competent to review it under Section 129D. We find from the Collectors order that he considered the question whether the import licences tendered by the respondents were valid for the importation of the goods or not. For reasons recorded in writing, the Collector contended that the licences were valid. We noted certain other deficiencies vis-a-vis, the import control regulations that he sent are the same. The order was, therefore, clearly one passed on a point of dispute relating to validity of import licences. It was passed by the Collector in exercise of his power under the Customs Act, 1962 read with Import and Export (Control) Act, 1947. It was not an order passed by the Collector in his administrative capacity. It is quite matter that the Collector's contention went in favour of the Respondents and there was therefore on (sic) [no] occasion to issue show cause notice to the Respondents to hear them. But that would not make the order as anything other than on order of adjudication. We, therefore, overrule the preliminary objection of the Respondents.
(d) Section 2(1) of the Customs Act, 1962 defines Adjudicating Authority as, Means any authority competent to pass any order or decision under this Act but does not include the Board, Commissioner (Appeals) or Appellate Tribunal.
This definition of adjudicating authority in the Customs Act induces us to conclude, that it is not the nature of order passed i.e., a formal adjudication order under Section 124 or an administrative/executive order under the Act, so long as it is passed by an authority competent to pass such an order or decision under the Act it could be subject for review. An order passed by the Collector under Section 4(2) of appointing an officer of customs below the rank of Assistant Commissioner, or an order approving landing places and specifying the limits of Customs area, or under Section 9 appointing boarding station or appointing custodian under Section 45, or permitting the delivery of Bill of Entry under proviso to Section 45(3), permitting an importer to enter into a general Bond under Section 59(2) or granting/referring extension of Warehousing period under Section (d)(1) (sic) [61(b)(i)] or fix rates under Section 63, are certain types of decision under Customs Act, 62, where valuable rights of parties may be effected, therefore, could be decision/orders passed in proceedings before Commissioner and interpreting as herein, may be considered as orders passed by Commissioner as adjudicating authority and they could be subject to review by the Board under Section 129D. The question therefore arises whether the law permits under Section 129(D), or/and is restricted to an order/decision passed as an Adjudicating Authority only as regards such decisions, passed under powers of Section 122 reads with 124, or orders/decisions taken under any section or all powers exercised under other sections of the Customs Act also. We see no such categories of two different sets of powers being exercised under the Customs Act, 1962, as held in the Metro Exporters case (supra) when we read the definition of Adjudicating Authority in the Customs Act.
(e) The decision of the SRB, in the case of CC, Cochin v. Emjay Enterprises, Bombay 1987 (12) ECR 490 which prescribes the test of going into the merits of the order and thereafter decide whether it is in nature of an Adjudication order, also does not appeal to us, since that would involve the crossing of the threshould of the preliminary objection raised. Merit could be considered only if appeal filed is maintainable. Moreover that would be determining whether the order is in nature of an Adjudication Order and not that whether it is passed by an 'adjudicating authority'.
(f) Since in the present case before us there are two conflicting decisions and the matter is not free from doubt, it is proposed that the issue be placed before the Hon'ble President to constitute a Larger Bench to review the issue, as to what is the scope of coverage under Section 129 D(1) of the term:
The Board may, of its own motion, call for and examine the records of any proceeding in which a Commissioner of Customs as an Adjudicating Authority has passed any decision or order under this Act.
occurring in Section 129D of the Customs Act, 1962.
i.e. whether it will be restricted to proceedings under Section 124 read with Section 122 only or it applies to all kinds of decision/orders passed by an authority under the Act within the authorities compliance.