Customs, Excise and Gold Tribunal - Delhi
Northern Plastics Ltd. vs Collr. Of Customs And Central Excise on 20 April, 1990
Equivalent citations: 1990(27)ECC304, 1991(51)ELT410(TRI-DEL)
ORDER K.S. Venkataramani, Member (T)
1. This appeal has been filed against the order dated 14-9-1989 passed by the Collector of Customs & Central Excise, Rajkot by which he had ordered confiscation of a consignment of 59 rolls of cinematographic colour film (un-exposed) positive imported by the appellants under Section 111(d) & (m) of the Customs Act, 1962 read with Section 3(2) of the Imports and Exports Control Act, 1947 levying a fine of Rs. 5 lakhs under Section 125 of the Customs Act in lieu of confiscation. The Collector also in that order imposed a personal penalty of Rs. 10 lakhs on the appellants under Section 112(a)(i) of the Customs Act, 1962. Briefly, the facts are that the appellants imported a consignment as aforesaid and filed a Bill of Entry on 11-1-1989 declaring GIF value of Rs. 32,75,17.1/-. They claimed clearance of the goods under OGL Appendix 6, List 8, Part I against Serial No. 186 of the Import Policy for April 85 - March 88. They claimed classification of the goods under Heading 37.02 of the Customs Tariff Act, 1975 and claimed exemption of duty under Notification 52/86 dated 17-2-1986 and Notification No. 157/88-Cus., dated 13-5-1988. The Customs House found that the goods were not eligible for exemption under the Notification as claimed and were leviable to duty at 100% plus auxiliary duty 45% plus additional duty @ Rs. 24 per Sq. metre, totalling to Rs. 68,09,540/- instead of Rs. 16.19,842/- as declared and claimed by the appellants. The Customs further concluded that the appellants had misdeclared the goods as Cinematographic colour film (un-exposed) positive' in order to claim the benefit of exemption under the Notification and also in order to suit the description in the Notification. When this was pointed out, the appellants requested for adjudication of the case without a formal Show Cause Notice but on hearing them in the matter. The Collector after explaining the charges against them gave them a personal hearing and adjudicated the case by an order dated 31-1-1989 in which he dropped the proceedings against the appellants with reference to the charges of misdeclaration and contravention of the provisions of the Import Policy. He, however, held that the appellants were not eligible for the exemption as claimed by them under the Notifications aforesaid. This order of the Collector was sought to be reviewed by the Central Board of Excise & Customs in exercise of the powers conferred under Section 129D(ii) of the Customs Act, 1962 and the Board directed the Collector to apply to the Tribunal for correct determination of the points raised in the Board's order. In the Board's direction, it was stated that on going through the records of the case, it was observed that the appellant had produced Small Scale Industries registration certificate dated 24-8-1985 from the U.P. Government and a Central Excise Licence issued by the Central Excise authorities at Ghaziabad, but that it was subsequently learnt that the appellants were not actual user (industrial), did not hold a valid Industrial licence under the industries (Development & Regulation) Act, 1951 and that accordingly, the import was not permissible under OGL, which was permissible only to actual user (industrial). Hence, the Board was of the view that the importation of the goods was un-authorised and liable to confiscation under Section 111 (d) of the Customs Act, 1962 and the appellants liable for penalty under Section 1.12 thereof. The Board further found that the activity of slitting and confectioning of photo-sensitised material from jumbo rolls is included under Scheduled Industries by Govt. of India, Ministry of Industries Notification dated 18-7-1986 and any party involved in such activity is required to obtain an industrial licence from the department of Industrial Development, but that the appellants herein were found to be having a licence for photographic colour paper only and not for cinematographic colour films. The Board found that the goods imported are found to be in jumbo rolls in the form of raw materials for manufacturing of cinematographic colour films, and in the circumstances, the Board was of the view that there had been a misdeclaration of the goods as cinematographic colour films (unexposed) positive to avail of the concessional rate of duty under Notification No. 50/88-CE at the rate of Re. 1/- per metre plus 45% plus CVD at Rs. 0.80 per metre. Based on this direction from the Board, the Collector filed an application before the Tribunal praying for the modification of the Collector's order dated 31-1-1989 in so far as it related to the dropping of the charges of misdeclaration and non-confiscation of the imported goods under Section 111(d) of the Customs Act, 1962 and praying for the imposition of penalty under Section 112(a)(i) of the Customs Act. This application of the Collector was disposed of by the Tribunal in its order No. 388/89-C dated 14-8-1989. In that order the Tribunal held after considering the evidence that what the appellants herein imported were jumbo rolls and not cinematographic films. The Tribunal also held that the appellants herein should hold a valid import licence and have a valid industrial licence for claiming the benefit of OGL for the import of jumbo rolls. The Tribunal also observed that the Collector was wrong in not invoking the provisions of Section 111(d) of the Customs Act regarding the un-authorised nature of the import. In this view of the matter, the Tribunal remanded the case to the Collector to readjudicate the matter after keeping in mind what the Tribunal had said in the order. The Collector, accordingly, issued a Show Cause Notice to the appellants herein dated 30-8-1989 charging the appellants with misdeclaration of the goods in order to avail of the exemption benefit and evasion of Customs duty to the tune of Rs. 51,80,698/- and also alleging that the import was un-authorised as the appellants herein did not have an Industrial Licence issued under Industries (Development and Regulation) Act, 1951 and thereby, they were not actual user (industrial) for the purpose of importing the goods under OGL. On a consideration of the reply to the Show Cause Notice and after personal hearing, the Collector adjudicated the matter as mentioned above.
2. When the appeal was called, there were some preliminary objections raised by the learned Departmental Representative Shri Sunder Rajan. He submitted that it will be improper for the present Bench to lake up the appeal because in his view, the appeal had already come up before another bench before whom arguments had been addressed and, therefore, in his view, the matter was part-heard and the further hearings will have to be by the same Members constituting that Bench. He assailed the Order No. 108/89 dated 29-10-1989 of the Senior Vice-President of the CEGAT as not legal on the ground that it amounted to creation of an extra Special Bench of the Tribunal. Dr. Devi Pal, the learned counsel for the appellants, on the other hand, contended that the matter cannot be said to be part-heard by the previous Bench because that bench had disposed of only the Misc. matters of stay and waiver of pre-deposit in its orders. The appeal itself had not been argued before that bench. The Sr. Vice-President's order changing the Members of the bench had been passed only after the previous Bench had risen on the point whether it could hear the appeal arising out of the Collector's order in pursuance of its own order of remand. Therefore, the appeal itself was not argued and heard. Further, the learned counsel pointed out that the previous bench had not held it illegal to hear the case but felt that as a matter of propriety a Bench consisting of different Members should hear the case. It was also contended by the learned counsel that it was not a case of creation of an extra Special bench of the Tribunal but it was merely a case where the Sr. Vice-President, who has the power of transferring an appeal under Rule 4(2) of the CEGAT (Procedure) Rules, reconstituting the 'C' Bench of the Tribunal for the purposes of this particular appeal.
3. On considering the submissions made carefully, we find that the objections raised by the learned Departmetal Representative are not valid since reconstituting of the 'C Bench by changing the Members thereof for the purposes of this particular case, before the appeal itself was heard on merits, on grounds of propriety, would not be creation of an extra Bench, and we further find that Section 129(5) of the Customs Act, 1962 delegates powers of the President to the Senior Vice-President and the power of transferring an appeal also vests with that authority under Rule 4(2) of the CEGAT (Procedure) Rules and in this view of the matter, we are inclined to agree with the submissions made by the learned counsel and the preliminary objections raised by the learned Departmental Representative are over-ruled.
4. The Misc. application is for impleadment of M/s. Hindustan Photo Films Mfg. Co. Ltd. as a party in the appeal filed by the appellants herein M/s. Northern Plastics. Shri G.L. Sanghi, the learned Senior advocate appearing for M/s. Hindustan Photo Films Co. Ltd. (HPF) submitted that the right of M/s. HPF to be impleaded arises because of its possession as the only licensee under the Industries (Development & Regulation) Act, for slitting and confectioning of cinematographic colour films and any attempt by others to get around this protection given to M/s. HPF under the Industries (Development & Regulation) Act would be a ground to make M/s. HPF an aggrieved person. It was also pointed out that earlier M/s. HPF themselves had filed an appeal against the Collector's order of adjudication but the Tribunal had rejected it on the ground that M/s. HPF did not have locus standi. A Writ Petition against this order has been admitted by the Hon'ble Delhi High Court. Shri Sanghi also cited the Delhi High Court decision reported inECC Vol. 241989 in the case of Union of India v. Northern Plastics Ltd. where it was held that M/s. HPF would be entitled to be the respondent. Alternatively, the learned Sr. counsel pleaded that M/s. HPF are entitled to be intervener of the matter. Dr. Devi Pal, the learned counsel vehemently opposed the Misc. application pointing out that M/s HPF are the business rival of the appellants herein and the Tribunal had already held earlier in its order that M/s HPF cannot be regarded as an aggrieved person against the Collector's order. The Delhi High Court's decision that M/s. HPF could be the respondent in the case cited, will not be of any avail because it arose in a decision by the High Court in exercise of its writ powers which are much wider. M/s. HPF had only a commercial interest in the matter and no legal interest and, therefore, they cannot be even permitted as interveners. When M/s. HPF cannot be impleaded as a respondent, the learned Sr. counsel argued they cannot equally be taken as interveners also. Shri A.S. Sunder Rajan, the learned Departmental Representative submitted that M/s. HPF already come before the Tribunal even before the Board's direction under Section 129(D) of the Customs Act, was issued to the Collector for filing an appeal. The learned DR further pointed out that in effect, what M/s. HPF is asking for is a permission to address arguments whether as a respondent or as an intervener. On consideration of the various submissions made, in this behalf, we observe that the CEGAT had already held earlier that M/s. HPF cannot be considered to be an aggrieved person in relation to the adjudication order of the Collector dated 31-1-1989 but at the same time, had found that there were sufficient grounds on which M/s. HPF could be allowed as interveners in the matter, and since the present appeal also arises out of the Tribunal's remand order, in the interest of justice, we order that the request of M/s. HPF for impleadment in the appeal be rejected, while we permit them as interveners in the matter for the reason aforesaid.
5. Dr. Devi Pal, the learned Sr. counsel appearing for the appellants addressed arguments on the jurisdiction of this Bench to go into the whole matter which had earlier been considered by the Tribunal, and which had been disposed of by remanding the matter to the Collector. The Collector's order passed in pursuance of the remand order is now before us. Dr. Devi Pal submitted that the earlier order of the Tribunal was one of remand and a remand order, he contended, is not a final order, but a tentative one. He urged that a coordinate Bench can take a different view if the facts before it are not the same because in that case, it will be a view taken with reference to fresh facts which were not before the earlier co-ordinate Bench. He further pointed out that the fact that the Tribunal's earlier order of remand was not final, is discernible from its own order. He referred to Para 57 of the Tribunal's order wherein the Tribunal only says that they have given their views regarding various aspects of the case and the Tribunal had gone on to say that the Collector should readjudicate the matter after keeping in mind what they have said in the earlier paragraphs. Expression of merely their views is only of a tentative nature and not a final conclusion on facts. Therefore, when the Collector passes an order in pursuance of such an order of remand, the present Bench can go into it as the remand order was one directing a readjudication of the case after issue of Show Cause Notice for the purpose. The learned Sr. counsel contended that the order of remand decides nothing and the reasons the Court gives, for its support, are given merely for its own convenience and for helping the lower Court to proceed rightly in carrying out the order of remand. In this connection, he cited and relied upon two judgments reported in AIR 1928 Cal. 186 and AIR 1983 Bom. 360. In the Calcutta judgment it was observed by the Court that "An order of remand...decides nothing, and the reasons that the Court gives for its support are given merely for its own convenience for the purpose of the determination of the appeal...and for helping the lower Court to proceed rightly in carrying out the Order. The Court, either the same or differently constituted, when determining the appeal finally, has ample jurisdiction to go back on the views as expressed in the order of remand...and indeed, it would fail in its duty, if, in deference to those views, which, no doubt, are entitled to the highest respect it persists in them, although it is satisfied that they are erroneous. It is necessary therefore, to consider the ...contention on merits". Same view has been expressed by the Hon'ble High Court of Bombay which is quoted below :-
"The question of law to my mind, is abundantly clear. The findings ...recorded in the remand order... though entitled to some weight, is certainly neither final between the parties and binding on me".
The learned counsel further urged that it was further been well settled that if further and fresh facts are brought out on record, there could be a departure from the earlier decision of the Bench by another Bench hearing the case subsequently, for good and cogent reasons, and cited in this connection the case of J.K. Synthetics v. Union of India reported in 1981 (8) ELT 828 of Delhi High Court. In the present case, the learned counsel contended certain aspects of the case, relating to the declaration of the goods giving description by size in the Bill of Entry, and in the invoice, as also the description of the goods as per the licence policy as jumbo rolls, made by the appellants, which could go to establish their case that there was no misdeclaration, had not been brought to the notice of the earlier Bench, as also the fact of the appellant holding a Small Scale Industries registration certificate and the factual details that in their factory, less than 50 workers are being employed and, therefore, the appellant's factory is out of the purview of the provisions of Industries (Development & Regulation) Act. This had also not been brought to the notice of the earlier Bench in full measure. Therefore, it was the appellant's contention that the present Bench could, on fresh facts urged before it, take a view different from that of the earlier bench. It was also argued by the learned Senior Counsel that the order of remand dated 1.4-8-1989 does not operate as res judicata between the parties since the Tribunal is not a Court as defined in the Civil Procedure Code and there is also no res judicata in fiscal proceedings like those under the Customs Act. The learned Senior counsel also contended that the order of remand is now the subject matter of appeal before the Hon'ble Supreme Court, under Section 130E of the Customs Act, 1962 and that when the appeal is pending, the said order is not yet final.
6. The learned counsel then addressed arguments regarding the finding of the Collector that there has been misdeclaration of the goods and contended that the Collector has followed the Tribunal's decision and the finding that jumbo rolls of cinema films and cinematographic film are two different articles, is not sustainable in law. He referred to Item No. 297(i), Appendix 6, List No. 8, Part I of Import and Export Policy of 1988-91 which describes the Item as follows :-
Jumbo rolls of width 1 metre and above of the following :-
1. Cinematographic Colour Films (Unexposed) Positive.
It was argued that jumbo rolls is only descriptive of the size of cinematographic colour films which must be of width of 1 metre and above. In other words, the article or the thing is the cinematographic colour film. Jumbo rolls is only descriptive of the particular size of cinematographic colour film namely, the goods concerned. The learned counsel also pointed out that the word "jumbo" is not permitted to be used in the description of measure as per the provisions of the Standards of Weights & Measures Act, 1976 and the rules made thereunder. As for the correctness of the declaration of the goods, the learned counsel referred to Customs Tariff Act Heading 3702.41 which deals with other films i.e. cinematographic films in rolls without sprocket holes of width exceeding 610 mm and the length exceeding 200 metres for colour photography (polychrome). It was urged that in the present case, the goods imported by appellants satisfies the description of the articles specified in 3702.41 i.e. its length is exceeding 200 m. (i.e. 1250 metres) and width exceeding 610 mm (i.e. 1140 mm). In the Bill of Entry also, the appellants had correctly declared the goods according to the description of the Tariff Heading as rolls of cinematographic colour films (unexposed) positive, falling under 3702.41 and also given the size showing length as 1250 Mt. and width as 1140 mm. Further, declaration for the purposes of import under OGL has been given pointing out that the goods fall under Item No. 186(i) of the Import Policy 1985-88 which corresponds to Item 297(i) of Appendix 6, List 8, Part I of the Import & Export Policy, 1988-91. Therefore, it was urged that the appellants had given the correct declaration both, in terms of the Customs Tariff Act, 1975 and also under Appendix 6, List 8, Part I of the Import-Export Policy, 1985-88. It was argued that the obligation to declare the articles is in terms of the Schedule to the Customs Tariff Act and if such declaration conforms to the requirement of the said Act, there is no question of mis-declaration. According to the learned senior counsel, the earlier Bench proceeded on the erroneous footings as if jumbo rolls are different items from cinematographic films, but the earlier Bench had not considered the definition of jumbo rolls appearing in the notification, as also in the Import Policy and had not considered it in the light of the Tariff description. In the first order of the Collector of Customs passed in January 1989, that authority had also taken the view that there is no mis-declaration.
7. The learned senior counsel next addressed arguments on the question whether the appellants are Actual User (Industrial) as per definition appearing at Page 26 of the Import Policy, 1988-91 to the effect that Actual User (Industrial) shall mean the industrial undertaking, be it in large scale, small scale or in the Cottage industries sectors, engaged in the manufacture of any goods for which it holds a licence or a registration certificate from the appropriate Government. Vide para 6(3) of the Import & Export Policy, it was therefrom argued that it is not the requirement of law that in order to be an Actual User (Industrial), one must hold an industrial licence under the Industries (Development & Regulation) Act, because there may be cases where in the case of Small Scale Industry or Cottage Industry, a person employs less than 50 workers and in such case, is not entitled to obtain any industrial licence under the I.D.R. Act and it is because of this reason, according to the appellants, the definition contemplates cases like Small Scale Industry or Cottage Industry where the person may hold a registration certificate under the appropriate authority, and the possession of such registration certificate will entitle him to claim Actual User (Industrial), according to the appellants. The present appellant had obtained registration from the Directorate of Industries, U.P. which subsequently included slitting/confectioning of jumbo rolls of cinematographic colour films. The learned counsel contended that the Tribunal had held in the order of remand that Industrial Undertaking appearing in Import & Export Policy must have the same meaning under the I.D.R. Act and argued that this interpretation is not sustainable because it is well settled that definition given to one expression under a particular statute cannot be imported into a different statute. The learned counsel then referred to the definition in Section 3(d) of the I.D.R. Act wherein the term Industrial Undertaking has been defined to mean any undertaking pertaining to Scheduled Industry carried on in one or more factories by any person, and then reference was made to the definition of factory in Section 3(c) defining it as any promises or precincts thereof in any part of which the manufacturing process is being carried on with the aid of power, provided that 50 or more workers were working thereupon on any day of the preceding 12 months. The learned counsel submitted, from this, it would appear that unless an Industrial Undertaking pertaining to scheduled industry is carried on in any one or more factory, it will not be an industrial undertaking within the meaning of Section 3(d) of the I.D.R. Act. Therefore, if the premises in which less than 50 workers are working in a manufacturing process carried on with the aid of power, it is not a factory within the definition of factory under Section 3(c) of I.D.R. Act. The appellant's case is that they were not employing 50 or more workers at any time. The counsel urged that this contention is supported by the factual position of the Returns filed by them in Form 4 under the Factories Act and Rules, which were produced before the Collector. The Inspector of Factories has also recorded his findings on surprise visit which are to the effect that the number of workers is less than 50. On earlier occasion before the Tribunal, the appellants could not produce these documents and hence, the Tribunal observed in its order of remand that it had no data before it to verify the statement. The learned counsel further argued that the mere fact that the appellant had applied for a carry on business (COB) licence under IDR Act it does not necessarily mean that the appellant is a factory within the meaning of Section 3(c) of the I.D.R. Act. It was submitted that in view of the Ministry of Industries Press Note of 8-7-1986 and the Notification of 18-7-1986 which did away with the exemption to the activity of slitting and confectioning of jumbo rolls of cinematographic films from the purview of I.D.R. Act had created some uncertainty and it was only according to the appellants, as a measure of abundant caution that they applied for COB licence. This should not stop the appellants from contending that they are not a factory within the meaning of I.D.R. Act and, hence, the licensing provisions do not apply to them. The learned Sr. Counsel also pointed out that though NPL had applied for industrial licence for four operations including slitting and confectioning of cinematographic film from jumbo rolls, licence has been granted only for one activity relating to photographic colour paper. Since there has been no rejection so far of the application for the other operations, it can only be considered to be pending. In any case as a small scale unit registered with the competent State authority, the appellants, it was urged were covered by the definition Actual User (Industrial) in the import policy and could therefore import the goods under OGL.
8. The next question regarding the validity of the additional licence produced by the appellants before the Collector, was taken up by the learned counsel and it was pointed out that the date of shipment of the goods is 17-10-1988 and the additional licence is effective from 4-8-1988. The appellants acquired these licences on 27-9-1988. Therefore, on the date when the goods were shipped, they were covered by a valid additional licence. The learned counsel urged that the validity of the Import licence is to be decided with reference to the date of actual shipment of the goods from the supplying countries and referred to the Handbook of Procedure for Import 1988-91 paragraph 86(1). Therefore, at the time of shipment of the goods, the appellants did have a valid additional licence with them. Therefore, the order of the Collector refusing to accept these licences on the ground that the letter of credit was opened earlier to the transfer of additional licence is, according to the appellants, erroneous. The learned counsel referred to para 215(2) of the Import Policy that the additional licence will be valid for the import of items appearing in Part I, List 8, Appendix 6 of the Policy and as per para 216 of the policy, the additional licences issued in the name of Export House/Trading House will not be subject to Actual User (Industrial) condition. The learned counsel urged that it cannot also be said that the goods imported by them are canalised item. Canalised items in Appendix 5, Part A, Item 6 of the Policy is finished cinematographic colour films whereas the goods imported are raw films in jumbo rolls.
9. On the applicability of the exemption to the goods imported in terms of Notification 52/86 and 50/88, the learned counsel pointed out that the Collector has held that the applicability and the claim for exemption under these notifications has not been decided by the remand order of the Tribunal dated 14-8-1989. It was the learned counsel's arguments that Notification 52/86-Cus., dated 17-2-1986 and Notification 266/86-Cus. as amended by Notification 253/88 dated 16-9-1988, both, validly existed and should be harmoniously interpreted. It was the appellant's view that the notification dated 16-9-1988 was designed to apply to units which fall under the purview of l.D.R. Act and the other notification No. 52/86 of 17-2-1986 was designed to apply to such other units in the Small Scale Sector, which were outside the purview of l.D.R. Act. It was furthcr urged that the claim of concessional additional Customs duty under Notification 50/88 is available in respect of articles falling under Heading 3702.20, which deals with cinematographic colour films (unexposed) positive whereas Notification 40/88-CE dated 1-3-1.988 does not deal with Heading 3702.20 at all, but deals with 3702.90 of the Central Excise Tariff. This Tariff heading deals with "others" i.e. residual articles such as Graphic art films, cinematographic films - exposed etc. other than cinematographic colour films (unexposed) falling under Heading 3702.20. Therefore, Notification 40/88 dated 1-3-1988 cannot have any application to the appellants. The learned counsel also submitted that although the appellants herein had filed Writ Petition before the Gujarat High Court claiming these exemptions, but had later withdrawn it, yet this was done pursuant to the remand order of the Tribunal reversing the Collector's order dated 31-1-1.989 because the order of the Collector was no longer effective. There was also the point that the Collector's Show Cause Notice in the de novo proceedings was also on this aspect.
10. In regard to the quantum of penalty and fine, the learned counsel for the appellants contended that the penalty was not sustainable because the order of the Collect or dots not at all give any reasons for imposing the penalty. It was further submitted that the penalty under Section 112(a)(i) of the Customs Act invoked in the Show Cause Notice for illegal import will not be attracted because they had already shown that they do have a SSI certificate and hence, were entitled to import the goods under OGL as Actual User (Industrial) under the Import Policy. They have further offered to produce valid additional licences lor the clearance of the goods. These licences were valid on the date of shipment. The learned counsel urged that the power to impose personal penally is a discretionary one to be exercised judicially and should not be a retributive levy, whereas in this case, there is no discussion by the Collector at all for imposing the penally and for the quantum thereof. The counsel, in this context, cited and relied upon the Supreme Court decision in Hindustan Steels Limited v. State of Orissa - AIR 1970 SC 253 wherein the Supreme Court observed that whether penalty should be imposed; for failure to perform a statutory obligation is a matter of discretion of the authority to exercise judicially and on a consideration of all the relevant circumstances and that even if a minimum penally is prescribed, the authority competent to impose the penalty will be justified in refusing to impose it when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. The learned counsel also urged that the redemption fine fixed by the Collector in his order is also un-reasonable and disproportionate in the circumstances of the case.
11. Shri Sunder Rajan, the learned Departmental Representative appearing for the department, began his arguments by pointing out that this Bench of the Tribunal in deciding the present appeal cannot take a different view on issues already concluded by the earlier order of remand passed by the Tribunal dated 14-8-1.989. The learnerd Departmental Representative, in this connection, relied upon the case law reported in AIR l970 SC 997 in Nain Singh v. Koonwairjee and Ors. to the effect that the Tribunal to take a different view on same fact cannot also be done as it would amount to review and no institution can exercise power of review unless it is specifically conferred by law. He also pointed out that (he Collector, while adjudicating the case, cannot go beyond the findings already given on certain issues by the Tribunal in its remand order and relying on the case law reported in AIR 1972 A.P. 250, it was contended that the powers of the Collector is limited to the direction in the remand order. It was also argued that the appellants cannot say that the remand order has no finality because by that remand order, the Tribunal had disposed of the department's appeal filed in pursuance of the Board's direction under Section 129D(1) of the Customs Act, 1962. It was also pertinent to note the legal position that even the remand order passed by the Tribunal is an appealable one under Section 130 E of the Customs Act, which would further show that it is a final disposal by remand of the department's appeal. He further relied upon the case of State of West Bengal v. Hemant Kumar Bhaltacharjee - AIR 1966 S.C. 1061 to say that the legal effect of a decision in remand, even if wrong, bind the party to the case until a final verdict in appeal. The learned Departmental Representative further pointed out that it was not a mere case of the Tribunal expressing certain casual observations or views and referred to the arguments before the Tribunal earlier by the department and formulation of the points for determination by the Tribunal in its order at para 46. The Tribunal had given detailed reasoning and finding in the subsequent paras 44, 47 and 55 on the questions whether there had been misdeclaration or whether there had been unauthorised import or whether the goods are to be confiscated under Section 111 (d) and these findings of the Tribunal on facts giving reasons thereto were specific conclusions on the issue according to the learned DR. It will be wrong, according to the learned DR to read the remand order to mean that the Collector could ignore the findings already given by the Tribunal in its order of remand on the issues set before it. It was further pointed out with reference to para 25 of the Tribunal's order that the department requested for remand of the matter to the Collector for determination of the quantum of fine and penally since information regarding the margin of profit etc. necessary for such determination, was not available before the Tribunal. The learned Departmental Representative also submitted that the issue of eligibility to the exemption notification as determined by the Collector in his first order of January, 1989 was never challenged by the appellants herein before the Tribunal and they had even withdrawn the Writ Petition in this behalf before the Gujarat High Court. This issue was not one of the points to be determined in the direction given by the Central Board of Excise & Customs in the application under Section 129D(1) and the Tribunal had also consequently not expressed any view thereon. Therefore, according to the learned DR, this issue is not open for determination now in the present proceedings arising out of the remand order of the Tribunal. The learned DR further emphasized with reference to the recent judgment of the Delhi High Court in Paras Laminates (P) Ltd. v. CEGAT - 1990 (45) ELT 525 wherein the Delhi High Court had laid down that the Appellate Tribunal is bound to follow the earlier decisions in similar matters and that decision of a Co-ordinate Bench or separate Bench is to be followed as it would otherwise amount to judicial indiscipline and that further when similar point is pending in appeal in Supreme Court, the Tribunal should await the decision thereof rather than going for the constitution of the Larger Bench of the Tribunal to look into the matter afresh. In this case, when there is a clear cut finding on the aspect of misdeclaration and un-authorised import by the co-ordinate Bench of the Tribunal already in the order of remand, another Bench of the same Tribunal can deviate therefrom only at the risk of doing an act of judicial indiscipline. Without prejudice to these arguments relating to the jurisdiction of this Bench, the learned DR addressed further arguments on merits.
12. In regard to the charge of misdeclaration, it was pointed out that the description of the items in the Bill of Entry is not exactly tallying with the Heading 3702.21, as in that Heading, cinematographic film is not specified nor does it specify end use. The learned DR referred to the definition of film in McGraw Hill Encyclopedia of Science and Technical Terms as film used in standard movie picture camera with perforations. The declaration given in the Bill of Entry regarding the goods is not only for the purpose of classification but is also for the purpose of Import Trade Control Policy as well as for claiming exemption and if the declaration is found defective for any of these purposes, the charge of misdeclaration would still lie. In the declaration for OGL on the Bill of Entry the appellants had used the term jumbo rolls but had not given such a description for classification and for exemption purposes.
13. As regards the applicability of exemption notification 266/86 and 52/86, the learned DR pointed out that the Collector's finding, even in the first order of January, 1989 was that the goods were misdeclared for the purposes of wrongfully availing the exemption under these notifications. Notification No. 266/86, on the other hand, is specifically for jumbo roll colour films as the one imported by the appellants. They also had applied for licence under I.D.R. Act saying that they should be enabled thereby to avail of the exemption under this notification.
14. On the question of legality of the import, although the appellants claimed that they had given the Serial No. in the Appendix of the Import Policy OGLs in their Bill of Entry, which would indicate that the goods were in jumbo rolls, yet the department's case is that it is up to the appellants to make the declaration as jumbo rolls specifically which they failed to do. In this connection, he referred to the declaration for purposes of OGL by the appellants. Their own application for licence under the I.D.R. Act also shows that the appellants knew the goods to be known as jumbo rolls, whereas the S.S.I. certificate also refers to the operations carried out by them as cutting/confectioning of jumbo rolls. The fact that in the Trade, the films of this size are referred to consistently of jumbo rolls is also relevant for the charge that the appellants knowingly misdeclared the goods by not specifying them as jumbo rolls. The learned DR also argued that the appellant's reliance on the Standard of Weights & Measure Act will be of no avail to them because those provisions apply to goods sold in retail, which is not the case here. The definition of Actual User (Industrial) in the Import Policy is not with reference to the scale of operation of the unit, but the criterion is whether it is an industrial unit or a non-industrial unit. The Tribunal in its remand order had found that the appellants were not Actual User (Industrial) and this finding of the Tribunal is binding on the present Bench. As for the appellant's contention that they cannot be considered as a factory under the I.D.R. Act, it was urged that the provisions of I.D.R. Act are different from the statute relating to imports and since the appellants did not have a licence under I.D.R. Act, there is non-compliance with the provisions thereof. Para 26 of the Import Policy clearly says that there should be compliance with the other laws. Apart from this, cinematographic films appear to Sr. No. 6 of Appendix 5 of the Policy as a canalized item, which cannot be imported under OGL. It is a consumer item and restricted for import under Appendix 2, Part B at Serial No. 145. Referring to the provisions of the I.D.R. Act, the learned DR referred to the decision of the Supreme Court in AIR 1970 SC 1453 in the case of Harackchand Ratanchand Banthia v. Union of India, to the scheduled industry under the Act and argued that the appropriate authority for registration referred to in Para 6(3) of l.T.C. Policy, with reference to an industry which is included in the Schedule to I.D.R. Act, would only be a Central Govt. authority, and no State Govt. authority will be competent to issue the registration certificate. The appellants did not have such a registration certificate for their activity from any competent central authority. Therefore, the possession of a S.S.I. certificate from a State Government will not be valid in respect of a scheduled industry under I.D.R. Act. It was also pointed out by the learned DR that consequent to the amendment in the I.D.R. Act and the notification thereunder bringing slitting and confectioning of cinematographic films under its purview, the appellants had applied for COB licence for four operations, but yet were granted licence only for slitting and confectioning of photographic colour paper and not for other operations. In this context, he also relied upon the Madras High Court judgment in the case of Computer Graphic (P) Ltd. v. Collector of Customs in Writ Petition No. 1596 of 1988 decided on 8-12-1989 wherein the Court had rejected the arguments that when out of the four operations for which the licence is applied for, the same is granted only in respect of one, it should be taken that the application is pending in respect of the balance. The Court observed that when the licensing authority had confined the grant of licence to one of the three items, with reference to which the application was made, the only inference possible is that the application has been rejected with reference to the other two items. Therefore, it is clear that they did not have a valid licence under I.D.R. Act. The learned DR also countered the submissions of the appellants that they are not a factory as defined under the I.D.R. Act by pointing out that the number of workers in the factory and precincts thereof is to be considered and it has not been shown that in such a context, the number of workers is still less than 50. In any case, the learned DR pointed out that it is significant that the Tribunal in its remand order had already said that whether the appellants are a factory or not under the I.D.R. Act, is not material for arriving at a finding regarding their eligibility for import under OGL. He also referred to the submissions made by the intervener HPF before the Delhi High Court in the case of Union of India v. Northern Plastics Ltd. - ECC Vol. 24 1989 that M/s. Northern Plastics are not really a S.S.I. unit but a part of the Jindal Group Empire and also they were not Actual User (Industrial) and did not have an industrial licence under I.D.R. Act. The learned DR also took objection to the manner in which the documents relating to the number of workers in the factory has been sought to be brought on record by the appellants by saying that this was not properly presented nor backed by affidavit, the documents which are not originals but copies not attested or authenticated.
15. Regarding the validity of the additional import licence produced by the appellants before the Collector, the learned DR pointed out that the appellants have also produced an un-attested photo-copy before the Collector and referred to para 215(2) of the Import Policy to say that even for additional licence, the Actual User (Industrial) condition has to be fulfilled and relied upon the case law reported in 1986 (10) ECC 112 - Raj Prakash Chemicals and 1986 (10) ECC 396 in the case of Godrej Alloy decided by the Supreme Court, and these decisions goes to show that in effect, what is not allowed to Actual User (Industrial) for import cannot be allowed to a trading house. He also supported the Collector's finding that the letter of credit having been open prior to the acquisition of the licence, the licence is invalid.
16. In respect of the quantum of penalty and fine, the learned DR pointed out, since the Tribunal had in its remand order already held that the import is unauthorised and the confiscation of the goods and redemption fine thereon has to follow. He referred to para 130 of the Hand Book of Import Policy which gives a clear warning to the importers that redemption on unauthorised import is likely to be heavy and referred to case law reported in 1983 (13) ELT 1392 that confiscation and personal penalty are statutory necessity once the offence is held to be established. The Delhi High Court, while dealing with the case law reported in 1987 (29) ELT 753 had clearly observed that in levying a redemption fine, it should be ensured that the importer does not enjoy a bonanza by way of illegal import. The redemption fine in this case with reference to the value of the goods works out to only about 5% and is, therefore, reasonable. So is the personal penalty, having regard to the facts and circumstances of the case and these do not, therefore, require any modification in the department's opinion.
17. Shri G.L. Sanghi, Sr. Counsel appearing for the intervener M/s. Hindustan Photo Films (HPF) submitted that the vital interest as well as the capacity of HPF to assist the court in the present proceedings has been recognised by the Division Bench of the Delhi High Court between the same already reported in 1989 ECC Vol. 24 page 1 which was confirmed by the Supreme Court by dismissing the Special Leave Petition against this order of the Delhi High Court by an order dated 29-8-1989. The Division Bench of the Delhi High Court in their judgment dated 8-5-1989 also acknowledged the fact that presence of HPF was vital due to its special position and the fact that it was the only person in this field. The learned Sr. Counsel referred to the copy of the writ petition of the appellant M/s. Northern Plastics Ltd. (NPL) before the Delhi High Court wherein they have throughout claimed to be covered by IDR Act. Even regarding the number of workers being less than 50 Shri Sanghi sought to refer to certain letters dated 27-1-1987 and 6-5-1989 of M/s. NPL to the Ministry of Industry to which an objection was taken by the learned Sr. Counsel Dr. Devi Pal, on the ground that an intervener can only address on arguments on points of law and not on fact in a dispute between the two parties in an appeal. Dr. Devi Pal also objected to the reference of those two letters on the ground that those documents were filed before the Tribunal on 14-8-1989 only at the conclusion of the hearing by the CEGAT while passing its earlier order of remand. Shri Sanghi, however, countered by submitting that if it is so, then at least for the purpose of present proceedings those letters are documents which are already on record and in these letters, Shri Sanghi submitted, which were in response to the query from the Ministry of Industry, M/s. NPL had indicated that the number of workers is more than 50. However, Dr. Devi Pal, the Sr. Counsel pointed out that it should be noted that M/s. NPL in these letters had considered not only the workers in the factory but it was total number of employees in factory and office, and on this ground, Dr. Devi Pal submitted, that the arguments of the intervener were untenable in law. Continuing his submissions Shn i Sanghi pointed out that according to Section 2 of the IDR Act Entry 52 of Union List in the 7th Schedule, control of industry so listed is with the Centre and outside the purview of the powers of the Stale Government and this legal position is confirmed in the judgment of the Supreme Court in Synthetic and Chemicals case reported in 1989 (4) SC 267. 1 (was also an admitted fact, the learned Sr. Counsel urged, that M/s. NPL, in fact, had applied for COB licence and pursued it by way of writ petition in the Delhi High Court and having done so, they cannot now take stand that the provisions of IDR are not applicable to them. The learned Sr. Counsel submitted that if it was a case that for any reason M/s. NPL considered themselves not covered by provisions of IDR Act then they should have in terms of Rule 19A of Registration and Licencing of Industrial Undertaking Rules, 1952 given a notice and no such action has been taken by M/s. NPL. He further referred to Rule 3 of the same Rules which relates to application of Registration of an existing industrial undertaking and also for the separate provision under Rule 7 of the Rules relating to application for licences for establishment of new undertaking. The learned Sr. Counsel submitted that in view of the provisions of IDR Act and Rules thereunder any licence or registration in respect of any scheduled industry can only be granted by the authority of the Central Government and the registration obtained by M/s. NPL from the U.P. Slate authorities as an SSI unit will not be relevant for the purpose of industrial licences or for considering M/s. NPL as actual users (industrial) under the input policy. Since M/s. NPL had no industrial licence or COB licence in respect of the goods imported they cannot be actual users (industrial) and they cannot also import the goods under OGL. Even as regards the claim that the number of workers employed was less than 50 the evidence by way of returns under the Factories Act, produced by M/s. NPL, were of some photo copies and at no stage is there any affidavit or assertion by anyone in authority in M/s. NPL on this aspect. The learned Sr. Counsel urged that mere production of photo-copy does not amount to proof all number of workers, the originals must be produced and proved.
18. On the question of the jurisdiction of this Bench to go into certain issues which have already been pronounced upon by the previous Bench in its remand order dated 14-8-1989, Shri Sanghi submitted that a perusal of the Tribunal's order shows that it had given clear cut findings that the goods imported by M/s. NPL are jumbo rolls and not cinematographic colour films and also a clear finding that importation of the goods was not covered by OGL in 1988-91 Import Control Policy and required a licence. The learned Sr. Counsel contended that a view taken by a coordinate Bench binds the other Benches of the same court and that this court cannot sit in appeal over its own judgment. He relied upon the case law reported in AIR 1972 SC 51 in the case of Shri Venkaleshwra Rice, Ginning and Ground Nut Oil Mills v. Stale of Andhra Pradesh where the Supreme Court had held that one coordinate Bench of the same High Court cannot take a view contrary to the decision given earlier by another Bench of that court. The Supreme Court also held that it is open for the judge to differ but in that case the only judicial alternative is to refer it to a larger bench and not dispose of the appeal by laking a contrary view. The learned Sr. Counsel also pointed out the well settled principles that the order of remand is binding on the remanded court and it cannot re-open the findings of the Appellate Court. Therefore, the learned Sr. Counsel submitted that the remand order passed by the Tribunal on 14-8-1989 is final and conclusive to the extent of the finding or conclusion recorded thereon. Nor can this Bench of the Tribunal take a different view, according to the learned Sr. Counsel, because there is no power of review conferred upon the Tribunal as such an action will amount to review. The learned Sr. Counsel further pointed out in this case it is also to be borne in mind that the appeal against the remand order of the Tribunal is pending before the Hon'ble Supreme Court which clearly means that the findings and views expressed in the said order are sub-judice before the Supreme Court and can be modified or altered only by the Appellate Court, name ly the Supreme Court.
19. On the aspect of the mis-declaration of the goods, the Sr. Counsel argued that the statute itself makes a distinction between jumbo rolls and cinematographic films. The duly leviable on jumbo rolls is much more than that of cinematographic films. The Standard Weights and Measurement Act and Rules framed thereunder arc not applicable to the goods in question as that Act is applicable only to finished consumable goods. The learned Sr. Counsel also submitted that in view of the law laid down by the Supreme Court in the Union of India v. Godrej Soaps - 1987 SC 175 M/s. NPL cannot clear cinematographic films which are canalised items even on additional licence.
20. In reply Dr. Devi Pal reiterated that an order of remand is not final and that in this case in its order of remand the Tribunal had merely expressed certain views which were to be borne in mind while readjudiealing the case as directed by the - Tribunal. The same Bench can also take a different view for cogent reasons and also if the earlier decision is contrary to law another Bench can differ from it. The earlier decision had also not considered the case in the light of the Supreme (Joint decision in the case State of Himachal Pradesh v. Nand Lal Jaiswal - AIR 1987 SC 251 wherein the Supreme. Court held that it is obvious from Section 11 read with definitions of factory and industrial undertaking contained in Sub-sections (c) and (d) of the Section 3 of IDR Act that licence from Central Government would be necessary only if 50 or more workers were working, It was also argued even if the appellant had applied and obtained IDR licence it cannot for that reason be held against them because law is not determined by the conduct of the parties.
21. We have carefully considered the submissions made by the learned Sr Counsels and the learned D.R. The first issue that will have to be determined in the present appeal is the question as to the scope in law for this Bench to come to a finding different from that arrived at by this bench while passing its earlier order of remand dated 14-8-1989. Arguments have been addressed on both sides to show that a coor dinale Bench is bound by the findings of another Bench which can be disturbed if at all only in appeal by higher Appellate Forum as a matter of judicial discipline. As against this it has also been argued that for sufficient and cogent reasons and when the con elusions of the previous bench are contrary to law this Bench can take a different view. Examining these contentions, we go to the origin of the appeal that was disposed of by the remand Order of the Tribunal dated 14-8-1989. The Central Board of Excise & Customs had directed the Collector of Customs, Rajkot under Section 129D( 1) of the Customs Act, 1962 to apply to the Tribunal for determination of certain issues arising out of the Collector's earlier order dated 31-1-1989. Section 129D(1) runs 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) xxx xxx xxx xxx (3) xxx xxx xxx xxx (4) Where in pursuance of an order under Sub-section (1) or Sub-section (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 on 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."
22. The Board had called for and examined the records of the proceedings leading to the Collector's order dated 31-1-1989 to satisfy itself about the legality and propriety of the said order and in its direction after examining the records the Board found as follows :-
"The Board is, therefore, satisfied that the order of the Collector permitting import of the goods under OGL by treating the importers as actual user (industrial) and dropping the charge of misdeclaration is not legal and proper for the above stated reasons."
23. The Board, therefore, under the powers vested on it under Section 129D(1) of the Act directs the Collector to apply to the Customs, Excise & Gold (Control) Appellate Tribunal for correct determination of the above points and imposition of suitable penalty. In pursuance of this direction the Collector filed the appeal as envisaged under Section 129D(4) of Customs Act, 1962 before the Tribunal with the prayer to modify the Order-in-Original dated 31-1-1989 of the Collector so far as dropping of charge of misdeclaration is concerned, and to order the confiscation of the imported goods in question under Section 111(d) of the Customs Act, 1962 and further praying for imposing suitable penally under Section 112(a)(i) of the Customs Act and to pass such order as may be deemed fit. This application of the Collector was taken up by the Tribunal for disposal as an appeal before it in terms of Section 129D(4) of the Customs Act. After hearing both the sides the Tribunal in its order (Para 46) framed the questions to be decided as follows -
(i) whether the goods imported by the respondents are jumbo rolls cinematographic colour films?
(ii) whether the importation by the respondents required a licence; or was it covered by OGL in 1988-1991 policy?
(iii) whether the Collector was right in not invoking Section 11 l(d) in his orders?
(iv) whether the Collector's order can be sustained? and
(v) if not, what would be the legal and just order to be passed?
Thereafter the Tribunal in its order held -
"47. Insofar as the identity of the imported goods is concerned it is quite clear that what has been imported are jumbo rolls and not cinematographic colour films. It was never the case of the respondents that the imported goods were not jumbo rolls. Besides, the perusal of the invoice and the bill of entry which clearly give the measurements of the film shows that the imported goods are jumbo rolls as defined in the exemption notifications. Dictionary meaning and case law are not necessary. Besides, we also keep in mind that if the imported goods are to be considered as cinematographic colour films the respondents would not, in any event, be allowed to import them as such films are canalised and only NFDC can import them. After considering the evidence, there is no doubt in our mind that what the respondents imported were jumbo rolls and not are cinematographic films.
(Emphasis supplied) Thereafter the Tribunal gave a further finding on the second issue and came to the conclusion after considering the arguments of the learned JDR for the department and those of the learned Counsels for M/s. NPL and HPF that the definition of actual user (industrial) in the Import Policy requires that the unit must be an industrial undertaking irrespective of the scale of operation and in this context observed that if it is the claim of M/s. NPL that they are not industrial undertaking because of not being a factory in terms of IDR Act then "they are ab initio shut out from claiming OGL, not being actual user (industrial) as defined in the policy." In this context the Tribunal also referred to the argument of M/s. NPL that they are not a factory and as a consequence did not need a licence under IDR Act observing that the Tribunal did not have any data before it to verify the statement. But the Tribunal observed, "however, that need not stop us" and proceeded to give the finding with reference to the definition actual user (industrial) in the Import Policy as stated above. The Tribunal thereafter gave a clear finding "if and only if they obtain industrial licence as prescribed in the IDR Act would they become actual user (industrial) for the purpose of Import Policy. This is the position of law...." The conclusion was summed up in para 54 on these points -
"54. As a result of the legal position applicable to these facts, we conclude that in any event, whether they are a factory or not, the respondents should hold a valid import licence or have a valid industrial licence for claiming the benefit of OGL for import of jumbo rolls."
The Tribunal also gave its finding on No. 3 set out by it and held "In our opinion the Collector was wrong, in that having made the observations in his order he did not invoke Section 111(d) in his order. He should have invoked the section and after hearing the importers, given finding either for or against."
24. From a perusal of the above facts it is clear that the application before the Tribunal was to determine whether there was misdeclaration and whether the import was unauthorised and Tribunal had considered the submissions of both the parties and intervener M/s. HPF in the matter and had given a clear finding that there was misdeclaration and that the import was unauthorised. It had remanded the matter to the Collector for adjudicating confiscation and penalty. The present impugned order before us of the Collector is the one passed in compliance with the order of remand of the Tribunal. We have to see in this context as to how far the present Bench can take a view different from the one given by this Bench in its order of remand dated 14-8-1989. It has been urged before us with reference to case law that an order of remand decides nothing and the reasons the court gives for its support are given only for its own convenience and for helping the lower court to proceed rightly in carrying out the order of remand and also for the preposition that the findings recorded in the remand order is neither final between the parties nor binding on the court. The citation for these prepositions are AIR 1928 Calcutta 186 and AIR 1983 Bombay 360. However, these observations have been made by the Hon'ble Calcutta and Bombay High Courts while dealing with cases under order 41 Rule 25 CPC which lays down where Appellate Court may frame issues and refer them for trial to the court whose decree is appealed from. We have already seen that the remand order of the Tribunal was one in disposal of an application for review under Section 129D(1) of the Customs Act for determining certain specific issues arising out of an adjudication order of the Collector flowing from the exercise of powers in this regard by the Central Board of Excise & Customs under that section and the Tribunal by its order of 14-8-1989 disposed of the application by giving its findings on the points raised therein. Therefore, the observations made by the High Courts in respect of cases under Order 41 Rule 25 may not be appropriate in the context of such an application under Section 129D( 1) of the Customs Act and its disposal by the Tribunal in terms of Section 129D(4) of the Act. On the other hand, even under the CPC in respect of a remand order under Order 41 Rule 23 the Allahabad High Court in the case reported in AIR 1968 All. 126 Kuber Singh v. Digvijay Singh had observed "The order of the remand passed by the High Court in the above second appeal was appealable and hence, any finding recorded or direction given in the second appeal while- remanding the appeal for a fresh hearing could not be reagitated before the court below or before the High Court and the only remedy available to the aggrieved party was to prefer an appeal against the order of remand."
25. As we have seen the remand order of the Tribunal dated 14-8-1989 contained clear finding that there was misdeclaration and that the import was unauthorised. This was after considering the arguments of M/s. NPL that the description of the goods had been made correctly as per the size of the film in the bill of entry and also that they employ less than 10 workers and that they are not a factory under the IDR Act and hence they do not require an industrial licence and also the submission that they held a SSI licence from the State Govt. and hence, were eligible to import the goods under OGL as actual user (industrial). Therefore, when such is the case the present Bench being a coordinate Bench cannot, in our view, give a different finding on the same issues. It has been sought to be argued by M/s. NPL that certain evidence to show that the number of workers employed by them in their factory was less than 50 was admittedly not before the Tribunal and that evidence in this regard has since been produced by them in the shape of the returns filed in Form 4 prescribed under the Factories Act, 1948. Although objection has been taken by the department to this evidence on the ground that these documents are only photo-copies and are not attested, and also that there is no supporting affidavit of anyone in authority, and although it has been pointed out by the intcrvener M/s. HPF that the application has been given for the Photographic Product Division of M/s. NPL, indicating that it is part of a bigger organisation, we note that the Tribunal's finding that the import was unauthorised has been arrived at for other reasons also independently and without necessity of evidence regarding number of workers, namely on the basis of the Tribunal's finding in para 51 and 52 of their order that M/s. NPL being a non industrial unit is not actual user (industrial) as per the Import Policy. Therefore, that finding would still hold and accordingly, another coordinate Bench cannot sit in appeal, as it were, to upset it. The Supreme Court expressed similar views in AIR 1972 SC 51 cited by the intervener in which the Supreme Court observed "It is strange that a coordinate Bench of the same High Court should have tried to sit in judgment over a decision of another Bench of that Court. It is regretable that the learned judges who decided the latter case overlooked the fact that they were bound by the earlier decision. However, if they wanted that the earlier decision should be reconsidered, they should have referred the question in issue to a larger bench and not to ignore the earlier decision." To the same effect further is the observation made by the Supreme Court in the case of Ujagar Prints v. U.O.I. - 1987 (27) ELT 567 (SC) wherein the Supreme Court observed "Judicial discipline requires that a Bench of two judges should not disregard the decision of a bench of three judges but if the bench of two judges is inclined to disagree with what has been said by the Bench of three judges on the ground that it does not represent the correct law on the subject the case should be referred by the bench of two judges to a larger Bench." It is in this context we find relevance in the case law cited by the learned D.R. in the case of Paras Laminates v. CEGAT- 1990 (45) ELT 52.1 (Delhi) . Paras 11, 12 and 13 of that decision are very relevant and are reproduced below -
"11. In case reported as Union of India v. Godfrey Philips India Ltd. -AIR 1986 S.C. 806, the Court had the occasion to express their opinion on this aspect of the matter in these words :-
"We find it difficult to understand how a Bench of two Judges in Jeet Ram's case - AIR 1980 SC 1285: (1980) 3 SCR 689 could possibly overturn or disagree with what was said by another Bench of two Judges in Motilal Sugar Mills case - AIR 1979 SC 621. If the Bench of two judges in Jeet Ram's case found themselves unable to agree with law laid down in Motilal Sugar Mills case, they could have referred Jeet Ram's case to a larger bench, but we do not think it was right on their part to express their disagreement with the enunciation of the law by a co-ordinate Bench of the same Court in Motilal Sugar Mills."
12. In a recent Judgment reported as Sunder Jus Kanyalal Bhatija and Ors. v. The Collector, Thane, Maharashtra and Ors., Judgments Today, 1989 (3) S.C. 57, the Court impressed upon the Judges to maintain judicial decorum and legal propriety while disposing of the cases on the points already covered by the same court. The relevant observations of the Court read as under :-
"It would be difficult for us to appreciate the Judgment of the High Court. One must remember that pursuit of the law, however, glamorous it is, has its own limitation on the Bench. In a multi-Judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principles to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned single judge or a Division Bench does not agree with the decision of a Bench of coordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure."
It is hardly necessary to emphasize that considerations of judicial propriety and decorum require that if a two-member Bench is appraised of a decision given by a larger Bench on the same subject matter, the said Bench should accept and follow the same and not embark upon to reconsider the matter even if they are inclined to take a different view. That is proper and traditional way to deal with such matters. This practice is founded on healthy principles of judicial decorum and propriety. This doctrine of binding precedent has the merit of promoting certainty and consistency in judicial decisions and enables an organic development of the law, besides providing assurance to the individual as to the consequences of transactions forming part of his daily affairs.
13. In the present case, the order of the two Judges Bench is untenable for two reasons:
Firstly, when it had been brought to their notice that three Judges Bench of the same Court has decided the same question of interpretation of a particular tariff item, it was their duty to have followed the same even if they had formed a different view.
Secondly, when the earlier case of Bakelite Hylam was under challenge in the Supreme Court, it was all the more proper for that bench to have waited the final verdict and not recommended the constitution of a larger Bench."
In this context it is further to be borne in mind that M/s. NPL have also filed an appeal before the Supreme Court against the very same findings of the Tribunal in its order of remand dated 14-8-1989 wherein the same arguments, as to the correctness of the declaration and eligibility for import of the goods under OGL, have all been put forth. Under these circumstances, we are, therefore, of the view that on the points of misdeclaration and illegality of the import, we, as a coordinate Bench, cannot, in law and in propriety, come to a different finding than the one already expressed by the Tribunal in its order dated 14-8-1989. The question also arises as to whether M/s. NPL understood the Tribunal's order of remand as not final on the issues. That such was not their understanding is evident from their appeal before the Supreme Court wherein they have submitted "After hearing the learned counsel for the parties the Tribunal passed the impugned order dated August 14, 1989 inter alia holding that the import of cine film made by the appellant was illegal inasmuch as it is not an actual user (industrial) and that the appellant has misdeclared the goods as according to the Tribunal the goods in question are 'jumbo rolls'." It is also evident from a Reference Application filed by M/s. NPL against the Tribunal's order that it was their understanding that its order was conclusive on the issues decided by it. A Reference Application is filed under Section 130 of the Customs Act which shows that the Collector of Customs or the other party made within 60 days of the date upon which he has been served with notice of an order under Section 129B (Order of the Appellate Tribunal) not being an order relating, among other things, to the determination of any question having relation to the rate of duty of Customs or to the value of goods for assessment by application require the Appellate Tribunal to refer to the High Court questions of law arising out of such order. The application under Section 130 was filed by M/s. NPL on 16-10-1989 [C/Ref/24/89-C] listing 9 points as questions of law arising out of the order of the Tribunal. There also in the statement of facts M/s. NPL had submitted that the Tribunal in its order had held that the import of film made by the applicant was illegal inasmuch as it is not an actual user (industrial) and that the applicant had misdeclared the goods as according to the Tribunal the goods in question are 'jumbo rolls'. It may be noticed that the submissions in the appeal before the Supreme Court are also contained in identical sentences. The same understanding of the Tribunal's order by M/s. NPL is reflected in their reply to the show cause notice before the Collector wherein they had contended that the Tribunal's order of remand was limited to two points only whether the import was valid under OGL and whether there was any charge of misdeclaration by the importer. Therefore, the appellant cannot now, in our opinion, put forth the contention that the findings on these aspects by the Tribunal in its order of 14-8-1989 were not final and that the present Bench even as a coordinate Bench will be free to take a different view.
26. Several submissions have also been made before us relating to the eligibility or otherwise of the goods imported under the Exemption Notification. However, these were not points to be determined in the application before the Tribunal filed in pursuance of the directions by the Board under Section 129D(1) of the Tribunal and the remand order did not cover this issue. The Collector of Customs, Rajkot order passed in pursuance of the remand order by the Tribunal is in terms only on the illegality of the import and on misdeclaration and consequential penalty on the appellants. His findings on the eligibility to exemption are mere reiteration of his findings in the first order passed by him on 31-1-1989 which was sought to be reviewed by the Board before the Tribunal in exercise of its powers under Section 129D(1). NPL had not challenged the Collector's finding in his first order of 31-1-1989 before CEGAT denying them the benefit of exemption while dropping the charges of misdeclaration and unauthorised import. They did file a writ petition before the Gujarat High Court on the issue which NPL had withdrawn subsequent to the disposal of the Department's application under Section 129D(4) by the Tribunal in its order dated 14-8-1989. We are unable to accept the argument now made before us that the withdrawal being consequent upon the Tribunal's order of 14-8-1989, NPL are entitled to agitate the issue regarding their eligibility to exemption as an issue arising out of Collector's order dated 14-9-1989 in compliance with the Tribunal's order of remand. This is because of NPL's own understanding of the remand order, as already noted supra. In these circumstances, in our view in the present proceedings, the Tribunal is not be called upon to give any finding in the matter.
27. The next question that arises will be as regards the validity of the additional licence, copies of which were produced by the appellants before the Collector and whether the Collector ought to have accepted them? The appellant's case is that these additional licences were valid to cover the import because the additional licences had been acquired by the appellants on 4-8-1988 and the shipment of the goods had taken place on 17-10-1988. Therefore, on the date of shipment of the goods they had a valid import licence and that the additional licences are not subject to actual user condition. However, the Collector had on a perusal of the photo-copy of the licences (which he observed were not attested by any responsible officer of the importing company) not accepted them for the reason that the date of letter of credit and hence the date of entering into contract was even prior to the issue of the additional licences and hence, the additional licences cannot be valid to cover the goods since the licence itself is dated 4-8-1988 and the letter of credit was dated 5-10-1987 earlier to the issue of the additional licences.
28. Examining these contentions it is observed that Para 215(2) of the Import Policy says that additional licence will be valid for the import of, among other items, items appearing in Part I of List 8 Appendix 6 of the Policy and in that Appendix 6 goods are allowed only to actual user (industrial). A further perusal of the photo-copy of the additional licence No. 3285156 dated 4-8-1988 also shows against the column 'Class of importer' 'actual user (RE)'. From this it is clear that even the question of acceptance or otherwise of the additional licence produced would arise only if it is accepted that M/s. NPL can be held to be actual user (industrial). The Tribunal had already found that they are not. We also find that the Collector's finding in this regard is supported by para 95(2) of the Handbook of Procedures relating to Import & Export Policy April 1988-1991 under heading 'Payment to suppliers' which is reproduced below :
"95(1) When goods are to be imported under an Open General Licence, authorised dealers in foreign exchange have been permitted to open letters of credit or make remittances to cover the imports on their being satisfied that the goods ordered are covered by the Open General Licence.
(2) With regard to goods not covered by an Open General Licence, no letters of credit can be opened or remittances of foreign exchange made unless the importer is in possession of a valid import licence with exchange control copy. When applying to an authorised dealer in foreign exchange for remittance of foreign exchange, the licence holder should produce before him the copy of the licence marked "for exchange control purposes".
(3) - xxx xxx xxx xxx xxx.
Therefore, we do not see any reason to modify the finding of the Collector that the additional licence produced is not acceptable for the clearance of the goods. This is apart from the fact that the Collector has prefaced his findings by saying that only a photocopy of the additional licence was produced before him which was also unattested.
29. This brings us to the question whether the redemption fine and the penalty imposed are justified and reasonable. Since the Tribunal had already found that the import was unauthorised the confiscation of the goods under Section 11 l(d) has to follow and in the matter of fine in lieu of confiscation in terms of Section 125 of the Customs Act, 1962 the learned D.R. has cited before us the Supreme Court decision reported in 1983 (13) ELT 1392 - Indo-Cltina Navigation v. Jasjil Singh in which the Supreme Court held that the Customs authorities cannot refuse to impose fine and penalty once the goods are held to be imported in contravention of law and that the Customs authorities cannot refuse to impose both of them on extenuating circumstances which in their discretion are only to be considered for determining the quantum of penalty and also fine in lieu of confiscation. Therefore, the law as laid down by the Supreme Court in relation to the Customs Act would also indicate that once the unauthorised nature of the import is established, confiscation of the goods and imposition of penalty under Section 112 of the Customs Act will have to necessarily follow as a statutory necessity and the discretion, if any, is only in determining the quantum of fine and penalty. We also further find that in the case of determining redemption fine, the Hon'ble Delhi High Court in the Jain Exports v. U.O.I. - 1987 (29) ELT 753 had held that the redemption fine should be so fixed that the importer does not enjoy a bonanza out of any illegal import. On a consideration of these aspects we find in this Case the duty difference works out to Rs. 51,89,698/-. The c.i.f. value of the goods is Rs. 32,75,171/-. The redemption fine on this has been fixed at Rupees Five Lakhs. Having regard therefore, to the c.i.f. value of the goods and the amount of differential duty involved, the quantum of redemption fine fixed by the Collector appears to us reasonable and it is, therefore, maintained. As regards the quantum of penalty we are of the view that a reduction thereof is called for, for one of the reasons the Collector himself has taken for allowing the option to M/s. NPL of redeeming the goods on fine in lieu of confiscation, namely that the importer has already been directed to pay duty without exemption, arid, accordingly we reduce the personal penally from Rupees Ten Lakhs to Rupees Five Lakhs which will be equivalent to the line levied on the goods, having regard to the facts and circumstances of the case. The appeal is disposed of accordingly in the above terms.
Harish Chander, Member (J)
30. I have perused the order written by my learned brother Shri K.S. Venkataramani, Member (T). I agree with his conclusions. Before I part with this matter, I would like to add my observations.
31. The Tribunal had decided the present matter vide its order dated 14th August, 1989 reported in 1989 (24) ECC 45 and the Tribunal had remanded the matter to the Collector of Customs and Central Excise, Rajkot for readjudication, and the Collector had readjudicated the mailer which is the subject matter of the appeal before us. The present appellants, viz. M/s. Northern Plastics Ltd. being not satisfied with the remand order of the Tribunal had also filed an appeal which is pending before the Supreme Court. Para No. 57 from the Tribunal's earlier order is reproduced below :-
"57. The next question that arises is as to what will be the legal and just order to be passed. The Collector's order has to be set aside and it is hereby ordered to be set aside. We have given our views about the aspect of licensing, about the necessity for invoking Section 111 (d), and, even though indirectly, the necessity to go into all the facts, circumstances, documents, law, evidence and arguments pertaining to this matter which involves substantial financial stakes. In these circumstances, we feel that it will be fair and just to direct that the Collector should readjudicate the matter alter keeping in mind what we have said in earlier paragraphs. We further direct that before readjudicalion he should issue a show cause notice in writing as the earlier show cause notice was oral and the respondents are entitled to be informed of the detailed charges against them."
A simple reading of the Tribunal's order shows that the Tribunal had remanded the matter and had given its findings in its earlier paras. Strictly speaking, res judicata is not applicable in revenue proceedings. Madras High Court in the case of Commissioner of Income Tax, Madras v. S. Devuraj reported in 73 ITR 1 had held as under :-
"There is of course no provision in the Income-tax Act relating to the matter and the doctrine of res judicuta also may not be applicable to orders of the Tribunal. Even so, in our opinion, it is proper and desirable that when the Tribunal takes a particular view on the scope and effect of a statutory provision, it does not contradict itself and come to a diametrically opposite view later; but in such a case, it follows the earlier view and, if and when the aggrieved party applies, should make a reference to this court of the question."
Bombay High Court in the case of H.A. Shah & Co. v. Commissioner of Income-tax and Excess Profits Tax, Bombay City reported in AIR 1956 Bombay 375, had held that it was not open to the Tribunal to come to a different conclusion to the one arrived at by that very Tribunal earlier without any limitation whatsoever. The mere fact that the second Tribunal may look upon the decision of the first Tribunal as erroneous in law would not justify it in coming to a contrary conclusion or reversing the finding of the first Tribunal. Relevant extract from the Bombay High Court judgment is reproduced below :-
" and, therefore, it seems to us that the mere fact that the second Tribunal may look upon the decision of the first Tribunal as erroneous in law would not justify it in coming to a contrary conclusion or reversing the finding of the first Tribunal.
Nor are we satisfied that in order to enable the second Tribunal to depart from the finding of the first Tribunal it is essential that there must be some fresh facts which must be placed before the second Tribunal which were not placed before the first Tribunal.
If the first Tribunal failed to take into consideration material facts, facts which had a considerable bearing upon the ultimate decision, and if the second Tribunal was satisfied that the decision was arrived at because of the failure to take into consideration those material facts and that if the material facts had been taken into consideration the decision would have been different, then the second Tribunal would be in the same position to revise the earlier decision as if fresh facts had been placed before it.
On principle there is not much difference between fresh facts being placed before the second Tribunal and the second Tribunal taking into consideration certain material facts which the first Tribunal failed to take into consideration. It may be said that even though the first Tribunal may lake into consideration all the facts, still its decision may be so erroneous as to justify the subsequent Tribunal in not adhering to that decision.
In a case like this, which indeed must be an extreme case, it could be said that the decision of the first Tribunal was a perverse decision, and if the decision of the first Tribunal was either arbitrary or perverse it would justify the second Tribunal in departing from the decision arrived at by the first Tribunal.
Therefore, in our opinion, an earlier decision on the same question cannot be reopened if that decision is not arbitrary or perverse, if it had been arrived at after due inquiry, if no fresh facts are placed before the Tribunal giving the later decision and if the Tribunal giving the earlier decision has taken into consideration all material evidence. We should also like to sound a note of warning, especially with regard to a Tribunal like the Appellate Tribunal, that it should be extremely slow to depart from a finding given by an earlier Tribunal.
Even though the principle of res judicata may not apply, even though there may be no estoppel by record, it is very desirable that there should be finality and certainty in all litigations including litigation arising out of the Income-tax Act. It is not a very satisfactory thing that an assessee should feel a grievance that one Tribunal came to one conclusion and another Tribunal came to a different conclusion and that the two conclusions are entirely inconsistent with one another.
Therefore, the second Tribunal must be satisfied that the circumstances are such as to justify it in departing from the ordinary principles which apply to all Tribunals to try and give as far as possible a finality and a conclusiveness to decision arrived at. We should also like to lay down a further limitation upon the power of the Tribunal to revise the decision given earlier by that very Tribunal.
The effect of revising his decision should not lead to injustice and the Court must always be anxious to avoid injustice being done to the assessee. If the Court is satisfied that by depriving the assessee of his rights under the later decision in an earlier year the assessee lost an important advantage or lost some benefit which he could have got under the Income-tax Act, then the Court may take the view that departing from the earlier decision leads to injustice or denial of justice and the Court may prevent an Income-tax Authority from doing something which would be unjust and unequitable."
32. In the present appeal before the Tribunal whatever fresh material or evidence was placed, which was not placed before the earlier Bench of the Tribunal, the same has been duly considered and after giving due consideration, my learned brother has come to the conclusion. I do not find that the, earlier decision was erroneous or perverse, in any way, and this Tribunal should not differ from the earlier decision and conclusions of the Tribunal. Bombay High Court in the case of Trikamal Maneklal reported in 33 ITR 725 had held that as the Tribunal had considered the merits of the contention of the assessee and arrived at a certain decision, the order of remand made by the Appellate Tribunal was final under Section 33(6), and it was not open to the Appellate Tribunal to permit the correctness of that order to be questioned in the proceedings subsequently brought before it against the final order of assessment, merely because the Tribunal at the later stage is advised that the previous order was erroneous in law.
33. In view of the above discussion, I agree with the conclusions of my learned brother Shri K.S. Venkataramani and the appeal is disposed of accordingly.
D.M. Vasavada, Member (J)
34. I have carefully perused the order dictated by Id. Brother Sh. K.S. Venkatramani, Member (T). I have also perused separate order dictated by Id. Brother, Sh. Harish Chander, Member (J). I would like to add following :
35. Reliance placed upon the judgments in Sri Venkateswara Rice, Ginning and Groundnut Oil Mills Contractors Co. etc. (supra) Ujagar Paints v. U.O.I. - 1987 (10) ECR 640, Paras Laminates v. CEGAT- 1990 (45) ELT 521 (Del.) and Sunder Jas Kanyalal Bhalija and Ors. v. The Collector - J.T. 1989 (3) S.C. 57, may not be appropriate because in those cases, the subsequent Benches were dealing with different subject-matter in the case of different parties. Here, the subject-matter is the same, parties are the same and so the principle laid down in the above citations, though absolutely correct and binding, will not come into play in the present matter. Here, we have to consider whether this bench can take a different view than one taken by the earlier Bench on any of the issues involved and whether there are any valid reasons for the same. We have carefully perused citations produced by both sides on behalf of the intervener. As per judgment at AIR 1956 Bom 375 cited by Id. Brother Sh. Harish Chander, this Tribunal can take a different view in following circumstances :
(i) The decision of the earlier Bench must be either arbitrary or perverse.
(ii) When some new facts, which were not before the earlier Bench, have been placed on record.
(iii) In this light, we have to consider whether any of the findings recorded by the earlier Bench arc required to be reviewed and re-decided.
36. On the question of misdeclaration, elaborate arguments have been advanced on the interpretation of various provisions of Customs Act, relevant notifications, Export Import Policy, etc. But all these arguments should have been or could have been advanced before the earlier Bench. These arguments are not such arguments which arise out of any subsequent provision of law which might have come into existence as a result of any amendment of any of the statutory provision or any judgment having been delivered by some higher forum like Supreme Court or High Court. That is not the case here. It is possible that, perhaps, we would have put a different interpretation and we might have come to a conclusion that there was no misdeclaration. But that would not justify our expressing different opinion than one expressed by the earlier Bench because that was a finding arrived at after hearing both sides and perusing relevant provisions of law and other relevant documents. It is true that on behalf of the appellant, lengthy arguments were advanced that the earlier Bench had simply expressed an opinion and that was not a finding but as rightly observed by Id. Brother Sh. K.S. Venkataramani, it is not true. The appellant itself has not accepted this to be finding which can be seen from the appeal filed before Supreme Court and from reply to the show cause notice filed by the appellant before the Collector. So, the decision by the earlier Bench cannot be treated as arbitrary. It is not the case of the appellant that it is perverse.
37. As far as the finding of the earlier Bench regarding requirement of licence under IDR Act is concerned, it is true that the earlier Bench had not examined the aspect whether the appellant was employing less than 50 workers at the relevant time and if so what was the effect and it would have been open for the appellant to produce the evidence on this point before the Collector. The Id. Collector has not examined this aspect as in his view it was not necessary, as the point was already decided in this Tribunal in order of remand. The appellant has produced some documents in support of its contention that at the relevant time, it employed less than 50 workers and arguments have been advanced by both sides regarding acceptability of these documents and evidentiary value thereof. The matter could have been remanded to the Collector to examine this aspect after providing opportunity to the appellant to produce documents. But it is not necessary and would not serve any purpose because the appellant has filed a Writ Petition No. 2286/89 in the Delhi High Court where in para 15, the appellant has referred to press note dated 8-7-1986 issued by the Ministry of Industry. In para 16, the appellant has referred to notification dated 18-7-1986 issued under Sub-section (1) of Section 29(b) of the [DR Act, 1951. Thereafter in para 17, it has been stated as under :
"Hence in these circumstances, subject to the legality of the press note, the petitioner became duty bound to obtain the COB with regard to all the industrial activities detailed above".
38. In this Writ Petition, the appellant has sought for writ of mandamus or any other appropriate writ/order/directions directing the UOI to issue COB licence in its favour. So, this was the understanding of the appellant before it filed the present appeal and it still persists in as far as the writ is still pending. Admittedly, COB is still not issued. So, till then, the appellant would not be in a position to carry on the manufacture.
39. Moreover, in an identical case in Writ Petition No. 15966/1988 in the case of Computer Graphic Pvt. Ltd. v. The Collector of Customs etc. the Madras High Court, has held that holding of licence is necessary for such type of manufacturer.
40. I have perused the judgment in the case of State of M.P. and Ors. v. Nand Lal Jaiswaland Ors. - AIR 1987 S.C. 251, but at that time, the notification in question was not in existence. The Madras High Court has considered this notification and has held as above.
41. As far as the question of acceptability of additional licence is concerned, only because the appellant had not produced the original additional licence before the Collector should not have prevented the Collector from considering availability of the same. He could have asked for the original to be produced. We could have remanded the matter back to the Collector to examine this aspect in the light of the original additional licence. But then in the present case it would not serve any purpose because as already held by the learned brother Shri K.S. Venkataramani, under provisions of 95 Para 1 and 2 of Hand Book of the Procedure relating to Import and Export Policy 1988-1991, Additional Licence would not be available to the appellant. The appellant has cited Poonam Plastic Industries v. Collector of Customs -1989 (39) ELT 634 (Tri.) and we have carefully perused it but on perusal it appears that provisions of Para 95(1) and (2) had not been brought to the notice of the Bench. Because it has been stated in Para 12 of that order as under:
"it has not been shown to us that there is anything in law which requires that a licence can be accepted only if it is mentioned in the letter of credit."
42. I agree with the conclusions of the learned Brother Shri K.S. Venkataramani and I agree with the final order proposed by him and so the appeal is disposed of accordingly.