Customs, Excise and Gold Tribunal - Delhi
Wavin India Ltd. vs Collector Of Customs on 4 June, 1993
Equivalent citations: 1994(71)ELT413(TRI-DEL)
ORDER Lajja Ram, Member (T)
1. These two matters : (1) the Miscellaneous Petition No. C/Misc/1367/92, dated 8-10-1992, in appeal No. C/3894/88-A and (2) the appeal No. C/1950/92-A, dated 30-10-1992, both filed by M/s. Wavin India Ltd., relate to the same Order-in-Original N0.KDL/6/DC/88, dated 28-1-1988, passed by Deputy Collector, Customs, Kandla. As both the miscellaneous petition and the appeal, relate to the same matter, they were heard together, and are being disposed of by this common order.
2. Under their Miscellaneous Petition No. C/Misc/1367/92, dated 8-10-1992, in Appeal No. C/3894/88-A, M/s. Wavin (India) Ltd., (hereinafter reffered to as the 'party' or 'the applicant/'appellant') have requested the Tribunal to direct the Collector of Customs, Kandla, to grant the consequential benefit arising out of its final Order No. 773/91-A, dt. 30-9-1991. Earlier they had filed a Miscellaneous Petition before the Tribunal, which was allowed by the Tribunal, and vide their Miscellaneous Order No. 230/92-A, dated 8-9-1992, the Collector of the Customs, Kandla was directed to implement the Order No. 773/91-A, dated 30-9-1991, within one month from 8-9-1992.
3. As the Collector of Customs, Kandla did not implement the Order of the Tribunal, dated 30-9-1991, as directed by their Misc. Order dated 8-9-1992 present Miscellaneous Petition, dated 8-9-1992, has been filed by the applicant.
4. It may be mentioned that under their final Order No. 773/91-A, dated 30-9-1991, in Appeal No. C/3894/88-A, the Tribunal have affirmed the Order-in-Appeal No. 3161/88-A, dated 29-8-1988, passed by the Collector of Customs (Appeals), Bombay, and held that the Department was justified in giving 30% reduction in value for the purpose of abatement under Section 22 of the Customs Act, 1962 (hereinafter referred to as the 'Act'). The party had requested for 50% reduction.
5. The Collector of Customs (Appeals), Bombay under his Order No. 3161/88, dated 29-8-1988 had affirmed the Order-in-Original No. KDL/6/DC/88, dated 28-1-1988, passed by the Deputy Collector of Customs, Kandla, in de novo proceedings, as per Order-in-Appeal No. 4288/87-Bch, dated 29-9-1987, of the Collector of Customs (Appeals), Bombay.
6. While the party, feeling aggrieved by the Order-in-Original dated 28-1-1988 of the Deputy Collector of Customs, Kandla, (denying them the 50% reduction, and allowing only 30% reduction in value for abatement of customs duty), filed an appeal with the Collector of Customs(Appeals), Bombay, the Collector of Customs and Central Exicise, Rajkot reviewed this Order (dated 28-1-1988 of the Deputy Collector of Customs, Kandla), and vide his Order No. VEI (28-8)/010/RRA/88, dated 27-1-1989, directed the Deputy Collector of Customs, Kandla, under Section 129 D(2) of the Act, to file an appeal before the Collector of Customs(Appeals), Bombay, requesting him to set aside the said Order (dated 28-1-1988, passed by the Deputy Collector of Customs, Kandla).
7. As mentioned above, on appeal of the party the Collector of Customs (Appeals), Bombay, under his Order No. 3161 /88, dated 29-8-1988 affirmed the order dated 28-1-1988 of the Deputy Collector of Customs, Kandla. However, the same Order, dated 28-1-1988 of Deputy Collector of Customs, Kandla was set aside by the Collector of Customs,Ahmedabad vide his Order-in-Appeal No. 627/92(61-KDL)Cus/Collector(A)AHD, dated 4-9-1992, on appeal by the department.
8. While allowing the appeal filed by the department, the Collector of Customs (Appeals), Ahmedabad observed that the party was not entitled to claim the benefit of any reduction in the value of the imported consignment of the PVC resin in question for the purpose of abatement of duty under Section 22 of the Act. He held that the abatement of the duty under Section 22, consequent to 30% reduction in the value allowed by the Deputy Collector of Customs, Kandla,was not justified.
9. Against this Order, dated 4-9-1992 of the Collector of Customs (Appeals), Ahmedabad, the party has filed the present appeal, to the Tribunal, that is appeal No. C/1950/92-A dated 30-10-1992.
10. Thus, the same Order of the Deputy Collector of Customs, Kandla which was confirmed by the Tribunal, vide their final Order No. 773/91-A, dated 30-9-1991, through affirmation of the Order-in-Appeal passed by the Collector of Customs (Appeals), Bombay, has again come up before us by way of appeal of the Collector of Customs (Appeals), Ahmedabad.
11. The Collector of Customs (Appeals), Ahmedabad set aside the Order-in-Original of the Deputy Collector of Customs, Kandla under his Order dated 4-9-1992, much after the Order of the Tribunal dated 30-9-1991.
12. In his Order, the Collector of Customs (Appeals), Ahmedabad has stated that the issue before the Tribunal pertained to the higher claim for reduction in the value of the imported consignment in question to the extent of 50% against 30% allowed by the Deputy Collector of Customs, Kandla.
13. The Collector of Customs (Appeals), Ahmedabad has allowed the appeal of the Collector of Customs and Central Excise, Rajkot, on the following grounds :-
(1) The contamination of the imported PVC synthetic resin cargo took place 3 1/2 months after its unloading from the vessel, and not at the time of its landing.
(2) The appellants failed to produce any evidence to show that the vessel in which the imported goods were carried had also brought cargo other than PVC.
(3) That the Tribunal did not at all go into the question of admissibility of 30% deduction in value.
(4) That the doctrine of merger cannot be applied to the facts of this case.
14. Against this Order, dated 4-9-1992 of Collector of Customs (Appeals), Ahmedabad, the party filed appeal in Oct., 1992 to the Tribunal on the following grounds :-
(a) The test report dated 22-8-1985 was given on a reference on behalf of Assistant Collector of Customs, Kandla, vide letter dated 22-8-1985, in respect of the sample drawn on 20-8-1985 to only analyse "as to whether the same (sample) is PVC resin or otherwise" and not "for the purpose of chemical test to ascertain the damage/deterioration of the cargo", as wrongly stated in the application under Section 129D(4) of the Customs Act,1962.
(b) The Tribunal in their judgment had observed that "on the basis of available evidence we are of the view that 30% overall depreciation allowed by the lower authorities is quite reasonable." Thus, the finding of the Collector that the Tribunal did not at all go into the question of the admissibility of 30% deduction in value, was not correct.
(c) The Order of the Collector (Appeals) was also wrong that the doctrine of merger cannot be applied to the facts of this case. In support they cited a number of judgments.
15. They prayed that the impugned Order passed in apppeal by the Collector of Customs (Appeals), Ahmedabad, be quashed, and the respondent Collector, Collector of Customs, Kandla, should be directed to give effect to the Miscellaneous Order No. 230/92-A, dated 8-9-1992, passed by the Tribunal on the Misc. Petition filed by the appellants seeking directions under Rules 40 and 41 of the CEGAT (Procedure) Rules, 1982, to implement the Tribunal's fnal Order No. 773/91-A, dated 30-9-1992.
16. Both the matters were heard on 26-2-1993 when Shri A.K.Jain, Advocate appeared for the party. Shri A.K. Singhal, JDR represented to the department.
17. Shri A.K. Jain, the learned Advocate submitted that these matters relate to the harassment to the party, non-implementation of the Tribunal's orders and withholding of legitimate dues for which the tax payer was entitled.
18. Dealing with the facts of the case, he submitted that they had filed 37 bills of entry on 8-8-1985. Import of PVC resin was made through port of Kandla. Immediately on their knowing that the goods have been damaged, they filed applications with the concerned authorities. The goods were also physically verified by the Customs Department, and were found to be damaged. The chemical report confirmed the damage. He submitted that the Tribunal's orders have not been implemented, and in place of implementing the orders of the Tribunal, the Collector of Customs (Appeals), Ahmedabad came to a contradictory finding, which was not correct in law.
19. He requested that the Orders passed by the Collector of Customs (Appeals), Ahmedabad may be vacated, and the Collector of Customs, Kandla be directed to implement the Tribunal's Orders, and give them consequential relief.
20. In support of his arguments, he relied on the following citations:-
(1) (1981) 48 STC 248.
(2)AIR 1963 SC 1124.
(3) (1991) 80 STC 42.
(4) (1992) 86 STC 412.
(5) (1989) 176 ITR 515.
21. Shri A.K.Singhal, learned JDR submitted that the Order passed by the Collector of Customs (Appeals), Ahmedabad was correct. The samples have been discussed by the Collector in his Order. He added that the entire consignment was not lost. He reiterated the order appealed against, and relied on the findings of the Collector of Customs (Appeals), Ahmedabad.
22. We have carefully gone through the arguments advanced on both the sides.
23. At the outset, we may mention that these two matters before us (1) Miscellaneous petition dated 8-10-1992 and (2) the appeal dated 30-10-1992, both filed by M/S. Wavin (India) Ltd., are examples of avoidable litigation. They are illustrative of the criss-cross decisions which in no way enhance the prestige of the prestigious Indian Customs.
24. Let us we recapitulate the events :-
(1) PVC resin was imported in August, 1985.
(2) Deputy Collector of Customs, Kandla adjudicated the matter in April 1986. He disallowed the appellants' claim for the abatement in value on the ground that the contamination had occurred due to the negligence of the appellants and their agents.
(3) In September, 1987, the Collector of Customs (Appeals) Bombay set aside the Order, dated 11-4-1986 of the Deputy Collector of Customs, Kandla (Sl. No. 2 above), and remanded the case back to him for de novo adjudication.
(4) Deputy Collector of Customs, Kandla readjudicated the matter in January, 1988. He allowed the abatement to the extent of 30%. He came to a finding that the damage/deterioration of the goods occurred before unloading of the goods from the vessel, and due to the vessel having suffered rough/stormy weather. Accepting the report of the Custom House Laboratory that contamination was to the extent of 6.4% he considered the deduction in value to the extent of 30% as reasonable for the purpose of assessment. Accordingly, he ordered abatement of duty on account of damage/deterioration of the goods by reducing the value of the goods to the extent of 30% under Section 22(3) (a) of the Act. The appellants have claimed 50% reduction.
(5) The appellants being not satisfied with the Order dated 28-1-1988 of the Deputy Collector of Customs, Kandla (Sr. No. 4 above) filed appeal with the Collector of Customs (Appeals), Bombay.
(6) In August, 1988 the Collector of Customs (Appeals), Bombay affirmed the Order dated 28-1-1988 of the Deputy Collector of Customs,Kandla (Sr. No. 4 above). He stated that the Deputy Collector of Customs, Kandla has taken due note of the fact that the party has claimed the percentage of contamination to be 9 to 11%, and the same would have warranted a reduction in value to the extent of 50%. As the actual analysis revealed contamination of 6.4%, Deputy Collector of Customs, Kandla had correctly granted rebate of 30% proportionately.
(7) Being dissatisfied with the Order, dated 29-8-1988 of the Collector of Customs (Appeals), Bombay, (Sr. No. 6 above), the appellants filed the appeal in the Tribunal.
(8) The Department did not file any cross objections with regard to the grounds of appeal of the appellants, urged before the Tribunal.
(9) The Tribunal disposed of the matter in September, 1991, by affirming the decision of the Collector of Customs (Appeals), Bombay (who had affirmed the decision of the Deputy Collector of Customs, Kandla). The Tribunal held that on the basis of available evidence, 30% overall depreciation allowed by the lower authorities was quite reasonable.
(10) In January 1989, the Deputy Collector of Customs, Kandla filed appeal against the Order dated 28-1-1988, referred to above in serial No. (4), as directed by the Collector of Customs and Central Excise, Rajkot, with the Collector of Customs (Appeals), Ahmedabad.
(11) The party filed Cross Objections with the Collector of Customs (Appeals) in June/July/August 1992.
(12) In August, 1992, the party filed miscellaneous petition for seeking direction under Rules 40 and 41 of the CEGAT (Procedure) Rules, 1982, to implement the Tribunal's Order, dated 30-9-1991 (referred to in Serial No. (9) above.) (13) In September, 1992, the Collector of Customs (Appeals), Ahmedabad set aside the Order, dated 29-1-1988 referred to above in Serial No. (4), of the Deputy Collector of Customs, Kandla, and allowed the appeal filed by the Department.
This Order dated 4-9-1992 was passed by the Collector of Customs, Ahmedabad after the Order, dated 30-9-1991 of the Tribunal, in which the Order, dated 28-1-1988 of the Deputy Collector had been affirmed.
(14) On 8-9-1992 the Tribunal passed miscellaneous orders, directing the Collector to implement the Tribunal's orders dated 30-9-1991 [serial No. (9) above], within one month from that date.
(15) On 8-10-1992, the party filed miscellaneous petition for seeking directions to the respondents to implement the Tribunal's Order dated 8-9-1992 (the present miscellaneous petition).
(16) On 30-10-1992, Wavin (India) Ltd. filed appeal to the Tribunal against the Order, dated 4-9-1992 of the Collector of Customs, Ahmedabad (the present appeal).
25. Under their final Order No. 773/91-A, dated 30-9-1991 the Tribunal has disposed of the appeal against the Order-in-Appeal No. 3161/88, dated 29-8-1988, passed by the Collector of Customs (Appeals), Bombay. This was an appeal filed by M/s Wavin (India) Ltd. The Collector of Customs and Central Excise, Rajkot, the respondents, have not filed any cross objection.
26. Under Section 129A(4) of the Act, on receipt of notice that an appeal has been preferred under Section 129 A of the Act, 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 45 days of the receipt of the notice, a memorandum of Cross Objections 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) of Section 129-A of the Act.
27. As held by the Bombay High Court in the case - Shankar Sadnzvanjhe v. Parwatbai, [AIR 1976 Bombay 241] respondent may support the Order not only generally but also on the ground decided against him, by filing Cross Objections.
28. Once the Tribunal has passed its final orders with regard to any matter, it becomes final.
29. Under Section 129B of the Act, the Appellate Tribunal may after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or Order appealed against, or may refer the case back to the authority who passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary.
30. It has been provided in Sub-section (4) of Section 129B that save as otherwise provided in Section 130 (Statement of case to High Court), or Section 130F (Appeal to the Supreme Court), orders passed by the Appellate Tribunal on appeal shall be final.
31. The Collector of Customs (Appeals) is an authority subordinate to the Tribunal under the provisions of Rule 40 of the CEGAT (Procedure) Rules, 1982. Rule 40 provides that the Tribunal shall exercise control over the departmental authorities in relation to all matters arising out of the exercise of the powers or of the discharge of the functions of the Tribunal.
32. The Collector of Customs (Appeals) had no authority to sit on judgment over the Order of the Tribunal. However, we find that the Collector of Customs (Appeals), Ahmedabad passed his order after the Tribunal has passed orders in the same matter, and he has sought to interpret the Tribunal's orders in his own way.
33. In paras 16,17 and 18 of his order, he had observed as under:-
"16. The other contention of the respondent with regard to non-maintainability of this appeal, is not acceptable inasmuch as, the issue, both before Collector of Customs (Appeals), Bombay as well as CEGAT in the appeals filed by the respondent against the impugned order and the Order-in-Appeal No. 3161/88 of CC(A), Bombay respectively, pertained to the higher claim for reduction in the value of the imported consignment in question to the extent of 50% as against 30% allowed by DC, Customs vide his impugned order. In fact, both CC (Appeals), Bombay and CEGAT while disposing of the respondent's appeals, have not at all gone into the question of admissibility or otherwise of 30% reduction in the value of the imported goods, which was not the subject matter of these appeals. On the contrary, they have rejected the respondent's claim for a higher reduction in the value to the extent of 50%. Moreover, both these Orders-in-Appeal are based on the chemical analysis, showing 6.4% contamination on the basis of test result of samples drawn on 3-12-1985, which has been relied upon in the impugned order. The question of considering the earlier test report sample drawn on 20-8-1985 by these two appellate authorities, did not arise, since there was no mention about it in the Order-in-Original appealed against.
17. It is also worth mentioning here that the CEGAT while rejecting the respondent's appeal vide Order No. 773/91-A dated 30-9-1991, have categorically stated that the respondent had failed to furnish any document showing that the foreign supplier had accepted 50% damage of goods in question, nor any evidence was placed to show that the value of the goods had gone down by 50%. As such, Tribunal did not interfere in the impugned order allowing 30% reduction in the value based on 6.4% contamination as revealed in the chemical test report dated 4-12-1985, relied upon by the DC in his impugned order. Thus, there was no occasion for the Tribunal for considering the question whether this 30% reduction allowed, was at all admissible or not. On the basis of the report dated 21-11-1985 of the marine surveyors, the Tribunal has also observed vide para 8 of its decision that out of 73290 bags of the PVC Resin landed, only 39024 bags were in slack/torn condition, while the remaining bags were in sound condition. The Tribunal has also noted that the reliance placed by the respondent on the credit notes of the supplier could not be considered for determining extent of depreciation in the value.
18. In view of the foregoing, it is thus evident that there was no occasion for CC(Appeals), Bombay as well as CEGAT to give their finding about the admissibility of 30% reduction in value, as allowed in the impugned order, since these two appeals were filed by the respondent importer for claiming higher reduction of 50% in the value. Thus, the issue before them was different. In view of this matter, the respondents' contention for non-maintainability of the present appeal filed by the department is without any basis, and hence, not tenable. The doctrine of merger cannot be applied to the facts of this case."
34. Let us now critically examine the Order-in-Appeal passed by the Collector of Customs (Appeals), Ahmedabad, along with the connected evidence on record :-
(1) As per para 2 of his Order, the consignment had reached Kandla Port on 19-8-1985.
(2) As per statement of outturn of S.S. Ocean Star of 19-8-1985 [copy given by the Assistant Traffic Manager (Shipping), Kandla Port Trust, the cargo of PVC resin suspension grade K 6567 (75000 bags) had depallatised and overslipped into spare polypropylene bags, as original bags landed in slack torn conditions.
(3) As per para 3 of his Order, the Customs authorities at Kandla had examined the cargo covered by Bill of Entry No. F. 1284, on 20-8-1985, and found the consignment to be partially damaged.
(4) The goods covered by the remaining bills of entry were examined by the Customs authorities on 26-11-1985, and the consignment was found partially damaged.
(5) As per chemical report dated 4-12-1985 the sample was in the form of an off-white powder and was PVC synthetic resin contaminated with soda ash, polyethelene granules, fertilisers etc. (6) Although there are differences about the stage at which the goods were damaged, there is no dispute that the goods presented for assessment were partially damaged. What will be the effect of the partial damage on the value of the goods will depend upon the nature of the goods, and the intended use to which they are to be put. It is a matter of careful analysis and judgment.
(7) The ground on which the Collector of Customs (Appeals) had com to a finding [that the contention of the party regarding non-availability of the first chemical test report of sample drawn on 20-8-1985, and that the vessel had carried other cargo in addition to the PVC, were factually incorrect and not tenable,], was the initial Order of the Deputy Collector of Customs, Kandla, dated 11-4-1986. This order has been reversed by the Deputy Collector of Customs, Kandla himself on de novo adjudication, and the findings have been affirmed/confirmed by the Collector (Appeals), Bombay, and the Tribunal.
(8) The Collector of Customs (Appeals), Ahmedabad had not brought any new material on record to come to findings which are contrary to the earlier findings of the Collector of Customs (Appeals), Bombay, who had earlier dealt with the same Order-in-CDriginal of the Deputy Collector of Customs, Kandla, on appeal by the party.
35. The Collector of Customs, Kandla had not filed any cross objection to the appeal filed by the party to the Tribunal.
36. The Tribunal had come to a finding that "the department was justified in giving 30% reduction in value for the purpose of giving abatement under Section 22 of the Customs Act."
37. In the light of these findings, the statement of the Collector of Customs (Appeals), Ahmedabad that "In fact both Collector of Customs (Appeals), Bombay and CEGAT while disposing of the respondents' appeals have not at all gone into the question of admissibility or otherwise of 30% reduction in the value of the imported goods which was the subject matter of this appeal", is not correct.
38. His observations in para 20 of his order are contradictory to the facts as summarised by him in para 2 and 3.
39. He has not given any basis except the initial order of the Deputy Collector of Customs, Kandla, (which had been revised on de novo adjudication), for his findings.
40. In the case - Tel Utpadak Kendra v. Deputy Commissioner of Sales Tax (1981) 48 STC 248, the Hon'ble Supreme Court have observed that "when the appellate jurisdiction of a superior authority is invoked against an order and that authority is seized of the case, it is inconceivable for a subordinate authority to claim to exercise jurisdiction to revise that very order."
41. They added with reference to the provisions of the Bombay Sales Tax Act 1959 that "it is not open to the Commissioner to invoke his power under clause (a) of sub section (1) of Section 57 and summon the record of an order over which the Tribunal has already assumed appellate jurisdiction. The subordinate status of the Commissioner precludes that".
42. The Hon'ble Supreme Court have observed that in quasi-judicial matters, the Commissioner was subordinate to the Maharashtra Sales Tax Tribunal.
43. The Supreme Court held that "the absence of an express provision cannot detract from the conclusion reached by us - a conclusion flowing from the necessary intendment of the statute - that the Commissioner being a subordinate authority to the Tribunal cannot interfere with an order pending in appeal before the Tribunal, and further that the interest of the Revenue is protected by the power of enhancement vested in the Tribunal while disposing of a second appeal filed by a dealer".
44. In the case - A. Vinayaga Murthy Nadar v. Joint Commissioner-11 Commercial Tax (1992) 86 STC 412, the Madras High Court quoted with approval of the judgment of the Division Bench of that High Court in Jeewan Lal (1929) Ltd. v. State of Tamil Nadu (1978) 42 STC 263, to the effect that there cannot be simultaneous exercise of the power by the Board of Revenue as well as by the Tribunal against the order of the Appellate Assistant Commissioner.
45. They also quoted the observation in the case - Ashok Leyland Ltd. v. State of Tamil Nadu (1981) 47 STC 155 (Madras) (FB), to the effect that the statute itself does not contemplate the order of the Appellate Assistant Commissioner being split-up into different orders, dealing with different items of relief claimed by the dealer, and granted or rejected by the Appellate Assistant Commissioner, but treats the order of the Appellate Assistant Commissioner as a single order, not capable of being dissected into different pieces.
46. The Supreme Court in the case - Collector of Customs, Calcutta v. East India Commercial Co. Ltd., Calcutta and Ors., AIR 1963 SC 1124, have observed that the Order of the original authority is merged in the order of the appellate authority, whatsoever its decision - whether of reversal or modification or mere confirmation, and that it is the Order of the Appellate Authority which is the operative order after the appeal is disposed of, whether the appellate authority has reversed the original order or modified it or confirmed it.
47. The decision in the case - Santoshi Tel Utpadak Kendra v. Deputy Commissioner of Sales Tax, (1981) 48 STC 248 (SC), was followed by the Supreme Court in the case of Khandelwal Ferro Alloys Ltd. v. State of Maharashtra (1991) 80 STC 42.
48. They added in para 10 of their judgment that the Tribunal was superior to the Commissioner even in revisional jurisdiction.
49. The Supreme Court also affirmed the full bench decision of the Karnataka High Court in the case of C.I.T. v. Hindustan Aeronautics Ltd. (1986) 157 FTR 315, that in cases where issues which could have been dealt with by the Appellate Authority but have not in fact been dealt with, entire order merges irrespective of the points urged and decided, and the Commissioner is precluded from exercising revisional jurisdiction, even on the point not urged and/or not decided.
50. In the case - Orient Paper Mills, Shahdol v. Collector of Central Excise, Bhubaneswar 1985 (19) E.L.T 451, the Tribunal observed that the Collector of Central Excise had no power under Section 35B(2) of the Central Excises and Salt Act, 1944, to pass an order in respect of the same matter as was before the Collector of Central Excise (Appeals), and which matter had been disposed of by the Collector of Central Excise (Appeals). They added that the effect of the Collector's order was, as it were, to wipe out the effect of the order of the Collector (Appeals), and that this, the Collector had no jurisdiction or authority to do.
51. Similar observations were made by the CEGAT in the case - Baroda Rayon Corporation Ltd. v. C.C.E., 1990 (48) E.L.T. 319 (Tribunal).
52. In the case - Kasturi and Sons Ltd., Madras v. Collector of Customs, Madras, 1985 (22) E.L.T 161, the Tribunal has observed that all that Section 22 of the Act requires an importer to do is to show to the satisfaction of the Assistant Collector that the goods have been damaged. They held that once the appellants had informed the customs that their goods had sufferred damage it was incumbent on the department to assess the value as per the provisions of Sub-section (3) of Section 22, and charge duty on such assessed value. They added that the appellants could not be blamed for inaction on the part of the department.
53. Thus, keeping in view the facts and circumstances of the case, we do not find any merit in the order of the Collector of Customs (Appeals), Ahmedabad. We set it aside and accept the appeal of the appellant. We also accept the Miscellaneous petition of the applicant.
54. We hereby order that the party is entitled for relief based on the 30% reduction in value for the purpose of giving abatement of duty under Section 22 of the Customs Act, 1962, and we order accordingly.
55. Before parting with the case, we will like to observe that this matter is old and the relief due to them had been denied for considerable period. In spite of orders passed by this Tribunal, the department has withheld the relief to which the appellant were legally entitled.
56. Hon'ble Supreme Court in the case - Union of India v. Kamlakshi Finance Corporation Ltd. 1991 (55) E.L.T 433 (S.C.), held as under:-
"...it cannot be too vehemently emphasised that it is of utmost importance that, in disposing of the quasi-judicial issues before them, revenue officers are bound by the decisions of the appellate authorities. The order of the Appellate Collector is binding on the Assistant Collector working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collector and the Appellate Collector who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the Higher Appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the Appellate authority is not 'acceptable' to the department - in itself an objectionable phrase - and is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent Court. If this healthy rule is not followed, the result will only be undue harassment to assessee, and chaos in administration of tax laws."
57. In the case - Hasmukh Lal Amrit Lal Mehta and Ors. v. N.B. Sonavene and Ors. 1982 (10) E.L.T. 67 (Bom.), the Bombay High Court has held that the Collector was bound by the order passed by the revisional authority.
58. In the case - Sandip Agarwal v. Collector of Customs -1992 (62) E.L.T. 528 (CaL), the Calcutta High Court has held that the order of the appellate authority is binding on the subordinate authorities even in the subsequent proceedings. The Calcutta High Court observed that "the Judicial decorum demands that a subordinate quasi judicial- authority must act in conformity with the orders passed by the Higher Judicial Authority."
59. In the case - Sandoz (India) Ltd. v. Collector of Central Excise 1990 (50) E.L.T. 403 (Tribunal), the Tribunal has observed that if the revenue felt that the Tribunal's order was not correct, and was aggrieved by it, they had a right to appeal against it to the Supreme Court under Section 35L of the Central Excises and Salt Act, 1944.
60. In that case revenue had re-adjudicated the issue involved in the appeal which had already been decided by the Tribunal in the Appellant's favour.
61. The Tribunal observed that the case has been re-adjudicated "in an ingenious manner that has in effect, if not in law, nullified the Tribunal's order". The Tribunal held that "this is impermissible under law and it, apart from being subversive of judicial discipline will bring the rule of law and administration of justice into ridicule and contempt".
62. In the light of foregoing discussions we, while allowing the appeal and the misc. applications as observed in paragraph No.53 supra, direct the Collector, Customs, Kandla to implement the said final Order No. 773/91-A, dated 30-9-1991 forthwith and also grant consequential relief to the appellant flowing out of this order.