Customs, Excise and Gold Tribunal - Delhi
Jaswant B. Shah vs Collector Of Customs on 6 December, 1995
Equivalent citations: 1996(81)ELT669(TRI-DEL)
ORDER
U.L. Bhat, J. (President)
1. The appellant, a partnership firm, acted as a clearing agent in relation to the import of a consignment of goods made by the importer, M/s. Madya Pradesh United Polypropelene Ltd. Bhopal. Duty was levied and paid. The appellant-firm subsequently filed an application before the jurisdictional Assistant Collector seeking refund of a part of auxiliary duty paid on the ground that by virtue of a notification auxiliary duty should have been levied at 15% and not at 30%. The. Assistant Collector rejected the calim on merits. The appellant-firm filed an appeal before the Collector (Appeals) who dismissed the appeal, without going into the merits, on the ground that the appeal could not have been filed by the clearing agent or customs house agent in its own name and the agent could not have signed the verification and the proforma of the appeal. This order is now challenged.
2. The matter is concluded by a decision of the Tribunal in V. V. Dabke & Sons Bombay v. Collector of Customs Bombay, 1983 (12) E.L.T. 583. In that case also, the customs house agent of the importer applied for refund of duty. The claim was rejected by the Assistant Collector and by the appellate authority. The matter came up by way of revision before the Government which was transferred to the Tribunal. The Tribunal on consideration of Sections 146 and 147 of the Customs Act, 1962 and the provisions relating to appeal under the Customs Act, held that the agent cannot file an appeal in his own name and right without stating that the beneficiary is the importer or someone else and that in the absence of any power of attorney, the agent could not be said to be acting under any other provision than Section 147. Considering the provisions of Section 146, the agent could not file an appeal in his own name.
3. It is not shown that at the time of filing the application for refund, the present appellant was a duly constituted agent of the importer. No attempt was made either before the Asstt. Collector or the Collector (Appeals) or even at the present stage, to show that at the relevant time the appellant had the requisite authority to file an appeal in his own right or on behalf of the importer. The appellant's letter accompanying the appeal memo states that the letter of authority from the importer will be sent to the Tribunal in due course. No such letter of authority has been received.
4. Any legal person can act directly or through a duly constituted agent. If the agent files a proceeding on behalf of the principal, it should be clearly indicated that the proceeding is by the principal through the agent. In this case, the refund application or the appeal should be by the importer represented by the duly constituted agent. Appellant has no case that it is in this manner that the refund application or the two appeals were presented. Importer is a company registered under the Companies Act, 1956. Under Rule 3(2) of the Customs (Appeals) Rules, 1982, grounds of appeal in the form of verification contained in form F. No. CA-I shall be signed, in the case of a company, by the principal officer thereof. These documents have been signed by a partner of the clearing agent. The document under which the agency was created is not available. In these circumstances, we hold that the refund application and the subsequent appeals are not maintainable in law. The appeal is dismissed.