Customs, Excise and Gold Tribunal - Mumbai
Om Prakash Arun Kumar vs Collector Of Customs on 16 December, 1992
Equivalent citations: 1993(64)ELT492(TRI-MUMBAI)
ORDER T.P. Nambiar, Member (J)
1. Ms. Anjana Gupta, the Ld. Advocate for the appellant Shri Nemichand B. Sanghvi (Appeal No. C/548/92 Bom) requested for permission to withdraw the appeal. Permission granted. Appeal C/548/92 Bom is dismissed as withdrawn.
2. The above-captioned appeals are filed by the appellants before this Tribunal. The orders in these cases were signed by the concerned Additional Collectors before 14-5-1992 but the orders were communicated to the respective appellants after 14-5-1992. The appellants have filed these appeals before the Tribunal on the ground that the orders though they were communicated after the Finance Bill received the assent of the President on 14-5-1992 were actually passed prior to the date 14-5-1992. It was the case of the appellants that in view of Section 115 of the Finance Act, 1992 which mentioned the removal of doubts, the provisions of Chapter XV of the Customs Act,1962, shall continue to apply in so far as they relate to any decision or order passed by an Additional Collector of Customs immediately before the date on which the Finance Bill, 1992 receives the assent of the President. Since the assent of the President was received only on 14-5-1992 and since the date of the order in all the aforesaid appeals is prior to 14-5-1992, the appeal is to be filed before the Tribunal, even though they were communicated the order after 14-5-1992.
3. Shri S.D. Nankani, the Ld. Advocate appearing on behalf of the appellant M/s. Om Prakash Arun Kumar (Appeal C/589/92 Bom) contended before us that the date of the order is the date which determines the jurisdiction in filing the appeal. It was his contention that the communication is only a procedural matter. Strong reliance was placed on Section 115 of the Finance Act, 1992. It was contended that for the removal of doubts, it was stated in the aforesaid section that notwithstanding the amendment made in clause (8) of Section 2 of the Customs Act, 1962 by the abovesaid Act, the provisions of Chapter XV shall continue to apply in so far as they relate to any decision or order passed by an Additional Collector of Customs, immediately before the date on which the Finance Bill, 1992 receives the assent of the President. He therefore contended that since the assent of the President was received only on 14-5-1992, the provision of Chapter XV shall continue to apply to the decision or order passed by the Additional Collector of Customs, prior to that date. Therefore, the appeal lies to the Tribunal. It was contended that the wording used is "to any decision or order passed by the Additional Collector of Customs immediately before the date." In that view of the matter, he urged before us that the date of passing the order, is the date on which the same was signed and not the date on which it was communicated to the appellants. He also drew our attention to Section 128 of the Customs Act. It was contended that Under Section 128 of the Customs Act, any person aggrieved by any decision or order passed under the Customs Act by an officer lower in rank than a Collector of Customs, may appeal to the Collector (Appeals). Section 128A of the Customs Act is only procedural. Therefore, the date of communication of the order becomes relevant only for the purposes of saving the limitation. The time limit of three months to file an appeal is deferred till the order was communicated to the respective parties but the fact remains that the order was passed only on the date on which it was signed. In that view of the matter, it was contended before us that since the date of the order was prior to 14-5-1992, the appeal lies before the Tribunal. The decision of the Bombay High Court reported in 1983 (12) ELT 84 (Bom.) in the case of Cosmic Radio v. Union of India & Or. was relied upon. Reliance was also placed on the decision of the Supreme Court reported in AIR 1988 SC 371 in the case of Vinod kumar Singh v. Banaras Hindu University and Ors. and also the decision of the Supreme Court reported in AIR 1987 SC 1554 in the case of State of Bihar v. Kripalu Shankar.
4. Shri Ved, the Ld. Advocate and Shri T. Cunasekharan, the Ld. Advocate adopted the said arguments of Shri S.D. Nankani, the Ld. Advocate.
5. On behalf of the other appellants, none represented.
6. Shri K.M. Mondal, the Ld. SDR, appearing for the Respondents contended before us that merely signing an order does not amount to an order. It was strenuously contended before us that in order to become an order it should be communicated to the person concerned. It is only after the receipt of the order, the person gets a right to file an appeal. The date of the order is deemed to be the date when it was made known to the affected person. Since in these cases the date of communication of the order was after 14-5-1992, and in view of the Finance Act, 1992, all the appeals from the orders passed by the Additional Collectors are to be filed before the Collector (Appeals). Shri Mondal, the Ld. SDR also stated that the right of appeal is a statutory right and this is to be exercised within a specified period from the date of the order. That being the position, the right accrues only when the order is communicated to the person affected and the law as on that date has to be applied in filing the appeals. He also stated that the limitation specified in filing the appeal is not a procedural matter but it is a substantive right. It was therefore urged before us that in all these appeals since the date of communication was after 14-5-1992, the appeals should have been filed before the Collector (Appeals), even though they were dated prior to 14-5-1992. He also contended that even though the impugned orders were dated prior to 14-5-1992, the appellants could not have filed the appeal before the communication of the same to them. He therefore stated that these appeals are not maintainable before the Tribunal.
7. We have considered the arguments advanced by both the sides carefully. It is now an admitted fact that after the Finance Act, 1992, all the orders passed by the Additional Collectors after 14-5-1992 are to be challenged before the Collector (Appeals) and not before the Tribunal. This position is now admitted by both the sides, but the crucial point which is to be determined in these cases is as to which is the date to be reckoned as the date of passing the order of the Additional Collector. The contention on behalf of the appellants is that, the date is the date of the order, that is the date of signing the order, but the contention on behalf of the Department raised by the Learned SDR is that this date should be the date on which the order was communicated to the appellants.
8. To appreciate this contention we may refer to the decision of the Bombay High Court reported in 1983 (12) E.L.T. 84 (Bom.). In that decision, Their Lordships of the Bombay High Court held as follows :-
"Mr. Mehta submits that it is open for the successor of Mr. Kullarwar to revise the order and the petitioners can make no grievance about the same. In our judgment, the submission is totally untenable. Mr. Kullarwar the Assistant Collector of Central Excise was holding the office on December 31, 1979 and has passed a valid order duly signed after hearing the petitioner in pursuance of the show cause notice. Merely because on retirement of Mr. Kullarwar, his successor takes a view that the order passed by Mr. Kullarwar is not correct, is no ground to claim that the order of Mr. Kullarwar has no force of law till it is communicated to the petitioners. The communication of the order passed by Mr. Kullarwar is merely an administrative act and the failure of the respondents to inform passing of such order would not take away the effect of the order of Mr. Kullarwar. The mere fact that the order was never communicated to the petitioners is no ground to hold that the order of Mr. Kullarwar is not in existence. The order passed by the Assistant Collector of Central Excise comes into operation as soon as the same is signed and is not made dependent upon the communication of the same to the concerned party. In my judgment, the stand taken by the successor of Mr. Kullarwar is totally erroneous and his action in issuing fresh show cause notice to the petitioners and calling upon them to re-agitate the matter before him is contrary to the provisions of law. The petitioners, accordingly, are entitled to the reliefs sought in the petition."
A perusal of this decision goes to show that the communication of the order is only an administrative act. An order passed by the Additional Collector comes into operation as soon as the same is signed and is not dependent upon communication of the same to the concerned parties.
9. This fact is made clear by enacting Section 115 Should be Section 112 -Ed. of the Finance Act, 1992 which reads as follows :-
Removal of "112. For the removal of doubts, it is hereby declared doubts. that notwithstanding the amendment made in Clause (8) of section 2 of the Customs Act,1962, by this Act, the provisions of Chapter XV shall continue to apply in so far as they relate to any decision or order passed by an Additional Collector of Customs immediately before the date on which the Finance Bill, 1992 receives the assent of the President."
A perusal of this section clearly shows that the doubt is clarified in the matter, by stating that the provisions of Chapter XV shall continue to apply in so far as they relate to any decision or order passed by an Additional Collector of Customs immediately before the date on which the Finance Bill, 1992 receives the assent of the President. The date of passing the order is the date on which it is signed. The date of communication of the order will be at a later date. It is abundantly clear that any order passed before the date of 14-5-1992 is to be appealed before the Tribunal, in view of the above section enacted in the Finance Bill, 1992.
10. The decision of the Supreme Court in the case of Vinod kumar Singh v. Banaras Hindu University and Ors. - AIR 1988 SC 371 is not applicable to the facts of this case. In that case, the operative portion of the order was pronounced in the Court. It was held by Their Lordships that the same can be amended or changed after giving notice to the parties and this should be done only in exceptional case.
11. In para 8 Their Lordships held as follows :-
"We have extensively extracted from what Bose J. spoke in this judgment to impress upon everyone that pronouncement of a judgment in court whether immediately after the hearing or after reserving the same to be delivered later should ordinarily be considered as the final act of the court with reference to the case."
Applying the above principle to the facts of this, it should be held that the date on which the order was signed by the Additional Collector should ordinarily be construed as his final act with reference to the case before him. It is not dependent on the date on which the parties are communicated. Once when the order is signed by him, he cannot change the order because that will amount to review of the order which has already been signed by him. Thereafter nothing remained to be done in the matter. The communication of the order is only an administrative act.
12. Reliance was also placed on the decision of the Supreme Court in the case of State of Bihar v. Kripalu Shankar - AIR 1987 SC 1554, but that case has no bearing on the facts of this case. In that case the Supreme Court was dealing with a contempt matter. It was held by the Hon'ble Supreme Court that it would be dangerous to found an action for contempt, for the views expressed in the notes file, on the discovery of unpleasant or unsavoury notes, on a perusal of the notes file by the court after getting them summoned. To rely upon the notings in the file for the purpose of initiating contempt would be to put the functioning of the Government out of gear. In our view this case has no relevance to the facts of this case.
13. The arguments of the Learned SDR Shri Mondal that the date of order is deemed to be the date when it was made known to the affected party cannot be accepted by us. As an example, we may illustrate the position in this regard. If an order is passed on 7-5-1992 and if the same affects the rights of four parties, and if two of them receive the order on 13-5-1992, then they have to file the appeal, admittedly before this Tribunal, but if the argument of Shri Mondal is to be accepted, the resultant position will be that the other parties who receive the orders later than 14-5-1992 have to file the appeal before the Collector (Appeals). This will bring a anomalous position. In order to remove this doubt, Section 115 of the Finance Bill, 1992 is enacted stating that the provisions of Chapter XV shall continue to apply in so far as they relate to any decision or order passed by an Additional Collector of Customs, immediately before the date on which the Finance Bill, 1992 receives the assent of the President.
14. Viewed from these backgrounds, it becomes clear that the date of decision or order passed by the Additional Collector refers to the date on which he signs the same and not the date on which the same was communicated to the parties. In interpreting this Act, a harmonious construction of several provisions should be taken into consideration including Section 115 of the Finance Bill, 1992. 15. Accordingly, we hold that the above-captioned appeals are maintainable before this Tribunal. The Registry is directed to post the appeals for hearing in their turn.