Customs, Excise and Gold Tribunal - Delhi
Khemka Travels vs Collector Of Customs on 22 July, 1991
Equivalent citations: 1991ECR625(TRI.-DELHI), 1992(57)ELT458(TRI-DEL)
ORDER
Harish Chander, Vice President
1. M/s. Khemka Travels have filed an appeal being aggrieved from the order passed by the Collector of Customs (Appeals), Bombay. Shri Shyam Mudaliar, the learned advocate has appeared on behalf of the appellant. He pleaded that the Collector of Customs (Appeals), Bombay had dismissed the appeal on the ground that the appeal was not accompanied by an order-in-assess-ment which had not been issued by the group. Shri Mudaliar, the learned advocate pleaded that the bill of entry itself is an assessment order and is appealable. He pleaded that since the Collector of Customs (Appeals) did not apply his mind on merits, if the Bench accepts that the appeal was maintainable on the basis of the bill of entry to be treated as an assessment order, then the matter be remanded to the Collector of Customs.
2. Shri S.K. Roy, the learned SDR who has appeared on behalf of the respondent, stated that the Collector of Customs (Appeals) had dismissed the appeal for not attaching the order-in-assessment. Shri S.K. Roy, the learned SDR stated that the Assistant Collector did not pass any separate order as per available records. However, assessment was made on the bill of entry. Shri Roy pleaded that since no order was passed by the Assistant Collector and the Collector (Appeals) has not applied his mind for disposal of the appeal on merits, he has got no objection to the remand of the matter to the Collector of Customs (Appeals), Bombay.
3. We have heard both the sides and have gone through the facts and circumstances of the case. The Collector of Customs (Appeals) had dismissed the appeal on the ground that "On scrutiny of case records it has been found that the appeal is not accompanied by order-in-assessment which has not been issued by the group." As per Rule 3 of the Customs (Appeals) Rules, 1982, the appeal is dismissed as improperly filed." During the course of arguments, we had enquired from the learned advocate whether the copy of the bill of entry was attached with the appeal memo before the Collector (Appeals). To this Shri Mudaliar, the learned advocate stated that with the appeal memo the appellant had attached a copy of the bill of entry. Shri Roy, on the other hand, stated that he is not aware whether the bill of entry was filed before the Collector (Appeals) or not. Filing of an appeal is a statutory right given by the statute to the aggrieved person. Section 128 of the Customs Act, 1962 gives a right to file an appeal before the Collector (Appeals). Section 128 is reproduced below :-
"128. Appeals to Collector (Appeals). (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Collector of Customs may appeal to the Collector (Appeals) within three months from the date of the communication to him of such decision or order."
A simple perusal of the section shows that any person aggrieved by any decision or order passed by an officer of customs lower in rank than a Collector of Customs may appeal to the Collector (Appeals) within three months from the date of the communication of the order. In the matter before us the bill of entry was attached along with the appeal memo to the Collector (Appeals) as per statement made by Shri Mudaliar, Advocate.
Section 17 of the Customs Act, 1962 relates to the assessment of duty and Section 47 relates to the clearance of goods for home consumption. Sections 17 and 47 are reproduced below :-
* * * * * * The goods have already been cleared for home consumption and clearance of the goods has been allowed under Section 47 of the Customs Act, 1962. Hon'ble Supreme Court in the case of Glaxo Laboratories v. A.V. Venkateswaran reported in AIR 1959 Bombay 372 had observed that when a law confers a right of appeal, the Legislature intends that that right should be an effective right and that right can only be an effective right if the officer or authority from whose order an appeal lies gives reasons for his decision. It is the only then that the appellate Court can properly discharge its function. It is only then that the appellate Court could consider whether the decision of the lower authority was correct or not. Para No. 16 from the said judgment is reproduced below :-
* * * * * * In the matter before us, the adjudicating authority has passed an order on the bill of entry. Accordingly, we are of the view that order on the bill of entry has to be treated as an order and as such was appealable before the appropriate forum. Privy Council had also occasion to deal with similar situation in the case of Secretary of State v. Mask & Co. reported in AIR 1940 Privy Council 105 where the Privy Council had held that adjudication as to confiscations, increased rates of duty or penalties made under the power conferred by Section. 182 of the See Customs Act, 1878 are decisions or orders within the meaning of Section 188. Section 188 is pari materia to Section 128 of the Customs Act, 1962. Para No. 8 from the Privy Council judgment is reproduced below :-
* * * * * *
4. In view of the decisions of the Bombay High Court in the case of Glaxo Laboratories v. A.V. Venkateswaran reported in AIR 1959 Bombay 372 and Privy Council in the case of Secretary of State v. Mask & Co. reported in AIR 1940 Privy Council 105, we are of the view that the appeal was maintainable against the order of assessment under Section 17 of the Customs Act, 1962. Since the Collector (Appeals) has not applied his mind for decision on merits, we are of the view that the matter should be remanded to the Collector of Customs (Appeals), Bombay. Accordingly, we set aside the impugned order and remand the matter to the Collector of Customs (Appeals), Bombay. While deciding the matter, the Collector of Customs (Appeals), Bombay shall observe principles of natural justice and shall grant an opportunity of hearing. Since the matter is very old, we shall appreciate if the Collector of Customs (Appeals), Bombay decides the appeal within three months from the date of receipt of this order.