Customs, Excise and Gold Tribunal - Delhi
Addl. Collector Of Customs vs Visakhapatnam Steel Project on 17 January, 1989
Equivalent citations: 1989(23)ECR81(TRI.-DELHI), 1989(41)ELT348(TRI-DEL)
ORDER Harish Chander, Member (J)
1. The Additional Collector of Customs, Visakhapatnam has filed an appeal being aggrieved from (he order passed by the Collector of Customs (Appeals), Madras. At the outset of the hearing Shri M.R. Srinivasan, the learned Consultant appearing on behalf of the Respondent, has raised a preliminary objection that in the present appeal the authorisation in terms of Section 129A(2) has been signed by the Additional Collector and he has got no authority to issue an authorisation for the filing of the appeal before the Tribunal. In the present matter the authorisation has been given by the Additional Collector and the appeal memo has also been signed by himself. He has argued that Additional Collector is inferior in rank to Collector and as such he is not authorised to issue the authorisation and also filing the appeal. He has pleaded that the appeal should be dismissed on this preliminary objection. Shri C.V. Durghayya, the learned JDR appearing on behalf of the Appellant has pleaded that in terms of the provisions of Sub-section (8) of Section 2 of the Customs Act, 1962 'Collector of Customs' includes 'Additional Collector of Customs'. He has pleaded that the authorisation in the present matter is correct and pleads that early hearing be granted in this case.
2. We have heard both the sides and have gone through the facts and circumstances of the case. For coming to a proper conclusion, reproduction of provisions of relevant law is very essential. Sub-section (2) of Section 129A of the Customs Act, 1962 is reproduced below :-
"(2) The Collector of Customs may, if he is of opinion that an order passed by the Appellate Collector of Customs under Section 128, as it stood immediately before the appointed day, or the Collector (Appeals) under Section 128-A, is not legal or proper direct the proper officer to appeal on his behalf to the Appellate Tribunal against such order."
3. In terms of Sub-section (8) of Section 2 of the Customs Act, 1962 "Collector of Customs" includes "Additional Collector of Customs". In the definition, similar are the provisions under Central Excise Rules. As per Rule 2(ii)(B) of the Central Excise Rules, 1944, 'Collector' means and "includes 'Additional Collector' and any other officer specially authorised under Rule 4 or 5 to exercise throughout any State or any specified area therein, all or any of the powers of the Collector under these Rules".
4. Delhi High Court in the case of Duncan Agro Industries Ltd. v. Union of India [1989 (39) ELT 211 (Del.)] had held that a person invested with the powers of a Central Excise Officer is entitled to exercise any of the powers given in the statute, including adjudicatory functions. The vesting of the powers means the totality of the powers, administrative, territorial and pecuniary Para 24 from the said judgment is reproduced below :-
"24. The definition contained in Section 2(b) of the Act says in addition that Central Excise Officer means any person (including an officer of the State Government) invested by Central Board of Excise and Customs constituted under the Central Board and Revenue Act, 1963 (54 of 1963) with any of the powers of the Central Excise Officer under this Act. By the impugned notification dated May 29,1986 in exercise of the powers conferred by clause (b) of Section 2 of the Act, and Rule 4 of the Rules, the Central Board of Excise and Customs thereby appointed a Director (Audit) in the Directorate General of Inspection and Audit (Customs and Central Excise), New Delhi, as Central Excise Officer and invested him with the powers of Collector of Central Excise, to be exercised by him throughout the territory of India. The powers, however, was restricted for the purpose of investigation and adjudication of such cases, as may, from time to time be assigned to him by the said Central Board of Excise and Customs. Under the second part of the definition contained in Section 2(b) any person including an Officer of the State Government, could be invested by the Central Board of Excise and Customs with any of the powers of a Central Excise Officer under the Act and this has exactly what has been done by the impugned notification dated May 29, 1986. It is not necessary in this case to determine whether "any person" would include an existing officer of the Central Excise Department as in fact the Director (Audit) is not already an officer of the Central Excise Department. The Board has been conferred with the jurisdiction to invest a person with any of the powers of a Central Excise Officer under the Act. The Legislature has authorised the Board to confer on such person all or any one or more powers and that would necessarily include the powers of a Collector exercisable under Section 11-A of the Act. There is no warrant to give a limited or a narrow meaning to the language employed by the legislature in the second part of Section 2(b) so as to restrict to the investing of powers under Sections 19, 21, 25 or 26 as it suggested and not Section 11-A. The investing of the powers means the totality of the powers, administrative, territorial and pecuniary. This interpretation would effectuate the power under Section 2 (b)."
5. A larger Bench of the Tribunal in the case of M/s. S. Kumar & Others v. Collector of Central Excise -1983 ELT 1057 (CEGAT) - held that Additional Collector of Central Excise is not lower in rank to Collector of Central Excise. "While determining the statutory status of the Additional Collector as a functionary, the pay-scales, subordination to Collector and lower ranking in administrative hierarchy is irrelevant as once an officer is equated with another by means of a deeming provision, such as "inclusive definition", for the purposes of functions it becomes equated with the other authority. Therefore, by virtue of the definition in Excise Rule 2(ii), the term 'Collector' would mean 'Additional Collector', also for the purpose of Excise Act. The fact that the Collector writes C.C.R. of Additional Collector would not change the position."
6. The Hon'ble Calcutta High Court in the case of Bansal Industrial Gases (Bihar) Ltd. v. Collector of Central Excise -1988 (37) ELT 347 (Cal.) had held as under :-
"7. In this connection, it may be mentioned that various notifications under Rule 4 read with Rule 2(ii) of Section 2(b) of the said Act were issued from time to time by the Central Board of Excise and Customs wherein it appears that the Central Board of Excise and Customs have appointed the Additional Collector of Customs, Calcutta as Central Excise Officer and invested the Additional Collector with the powers of the Collector of Central Excise by the Notification No. 45/67-C.E., dated 1-4-1967. From the said notification it is made crystal clear that the Central Board of Excise and Customs have appointed Collector of Customs, Calcutta and the Additional Collector of Customs, Calcutta as Central Excise Officer and invested the said Collector and Additional Collector with the powers of a Central Excise Officer. Similar other notifications are there where the Collector and the Additional Collector have been appointed as Central Excise Officers and invested the Collector and Additional Collector of Customs with the power of Collector of Central Excise. In my view, if such power was not conferred by the Central Board upon the Additional Collector to discharge the power and function of a Collector, in that event any order passed by the Additional Collector would have been void and illegal, inasmuch as, under the Act until and unless such authorisation is made either in the Act by expressed word or through delegation of power by the Central Board, in that event, the Additional Collector could not have exercised any function whatsoever. The said notifications are in the nature of the statutory instruments in the nature of contemporary exposition, inasmuch as, this notification shows how statute was understood by those to whom it was addressed and by those who are responsible for its enactment. It is well-known that the best exposition of a statute or any other document is that it has received from contemporary authorities and in the instant case, the authorities concerned clearly understood the powers and function of the Collectors and/or the Additional Collector and/or the other authorities for the purpose of proper functioning and the authorities were fully aware that the definition of the word Collector includes the words Additional Collector and that was the very reason for which both the Collector and Additional Collector were appointed as Central Excise Officer and vested them the powers of a Central Excise Officer under the Act and the rules. This clearly throws light on this point and conclusively establish that the Additional Collectors are not subordinate to the Collector and that there could not be any doubt that the decision taken by the Additional Collector means a decision taken by the Collector for the purpose of appeal and the authority competent to hear the appeal against the order of the Collector is only competent to hear and dispose of the appeal from the decision of the Additional Collector.
7. In view of the above judicial pronouncements we hold that the Additional Collector of Customs was authorised to exercise the powers of the Collector of Customs and the authorisation by him is correct in law. In the matter before us the appeal memo has been signed by the Additional Collector himself. In these circumstances, even the authorisation was not necessary. Accordingly we over-rule the objection of the Respondents.
8. During the course of arguments, the learned JDR had made a prayer for early hearing of the appeal. Since the stay application is to come up for hearing first, we do not want to pass any orders in this regard at this stage. We order the Registry to list the stay application for hearing first. The stay application filed by the Revenue will be heard on 28th February, 1989.