Customs, Excise and Gold Tribunal - Mumbai
Vaz Forwarding Pvt. Ltd. vs Collector Of Customs on 7 February, 1990
Equivalent citations: 1990ECR469(TRI.-MUMBAI), 1990(48)ELT477(TRI-MUMBAI)
ORDER P.K. Desai, Member (J)
1. This appeal is directed against the order of the Collector of Customs, Bombay bearing No. S/8-24/89-ADMN dated 05-10-1989 suspending the licence of the appellant in exercise of his powers under Regulation 21 of Customs House Agent Licensing Regulations, 1984.
2. The appellants are the licensed Customs House Agents holding the licence No. 11/23.
3. A preliminary objection is raised as to whether the appeal against the said order of the Collector of Customs could lie to the Tribunal.
4. Shri Sonawane, the learned consultant appearing for the appellants, while conceding that no provisions exist in the Customs House Agents Licensing Regulations, 1984, for filing any appeal against the order of the Collector passed under Regulation 21, submitted that the relevant provisions in this regard are found in Section 146 of the Customs Act, and the Regulations are also framed vide powers invested in the Government under the same section, and the Regulations being meant for proper implementation of the provision of the said section, the order passed by the Collector is the one passed in exercise of his powers under Section 146 of the Customs Act. The learned consultant then submitted that vide Section 129-A(1)(a) of the Customs Act, the Tribunal is invested with the powers to hear appeals against a decision or order passed by the Collector of Customs as an adjudicating authority. In his submission "adjudicating authority" is defined in Section 2(1) as to mean any authority competent to pass any order or decision under the Act. According to the learned consultant, the present order being the one passed by the Collector in exercise of the powers invested under the Act, he becomes the adjudicating authority and by virtue of Section 129-A(1)(a) of the Act, the appeal would lie to the Tribunal. He also submitted that the Customs House Agent Licensing Regulations, 1984 have been framed by way of replacement of the Customs House Agents Licensing Regulations, 1965, where provisions did exist in Regulation 28 as regards the appeal against such order. In his submission the existing definition of the word "adjudicating authority" was inserted vide Finance Act of 1980. Similarly, the provision of Chapter XV (of which Section 129-A is a part) were also modified under the same Act, and Section 129-A come on the statute book. The present Regulations have been framed only thereafter and when the Govt. has thought it not necessary to insert the provision regarding appeals, in the present Regulations, though they very much existed in the earlier Regulations, provides a clear pointer that because of Clause (1)(a) of Section 129-A, the appeal against any order of the Collector being entertainable by the Tribunal, it was not necessary to make any specific provisions in the Regulations.
5. Shri KM Mondal, the learned SDR, on the other hand, submitted that enabling provisions for the action under question are found in Section 146 of the Customs Act, and argued that vide section 146 of the Customs Act the Govt. has to frame Regulations as regards the licensing procedure. Referring to Clause. (f) in Sub-section (12) Mr. Mondal submitted that amongst others, Regulations have to be made as regards the appeals to be filed. In his submission, when the Act itself provides for making separate Regulations as regards the appeal, the same makes the intention of the legislation explicitly clear that the general provisions regarding the appeals for the orders or direction as regards other provisions under the Act, are not intended to be applied here, and as such the general provisions of appeals laid down in Section 129-A of the Act cannot be attracted here. He conceded that in the Licensing Regulations of 1964, provisions for filing appeal existed, but submitted that mere non-insertion of such provisions in the Regulations of 1984 may not be construed in the way as is sought for by the appellants. According to him, it may be that framing of Regulations as regards the appeal may be under con templation of the Government. He also submitted that the order passed by the Collector was in the nature of an executive order and not as an adjudicating authority and any order passed as an executive order need not be an appealable order and when no provisions exist for appeal, no appeal against such an order is maintainable and in any case, this Tribunal could not be the authority competent to hear the appeal.
6. Examining the submissions made and considering the point at issue, it is an undisputed position that Section 146 of the Customs Act, provides for licensing the Customs House Agents, and Sub-section (2) provides for making regulations, as regards (a) licensing authority, (b) forms of and fees for licence, (c) qualifications of the holder of licence and his employee, (d) restrictions and conditions for the licence, (e) suspension and cancellation of licence, (f) appeals against such suspension and cancellation.
7. Regulations have been framed, called Customs House Agents Licensing Regulations, 1984. Prior to this, there were similar Regulations made in 1964, which were effective till they were replaced in 1984 Regulations. Regulation 28 in the Regulations of 1964 did provide for an appeal to the Central Board of Excise and Customs, against any order of suspension or cancellation of the licence. No such provisions are found in the Regulations of 1984.
8. We may at the outset state that it is not possible for us to endorse the views of the learned SDR that, the Govt. may be contemplating making some further Regulations in regard to the appeal. When the provisions for appeal existed in the earlier Regulations which have stood replaced by the Regulations of 1984, it cannot be assumed that the Government has, due to some inadvertence overlooked this aspect. On the contrary with omission of the specific provision in that regard, there is a positive indication that the Govt. has felt it not necessary to make any specific provision in that regard for the same purpose, and it can reasonably be inferred that the Govt. has felt that provisions exist somewhere else in the statute itself to take care of such exigencies.
9. We also cannot endorse the submission of the learned SDR that this is an executive order. The order is passed under Regulation 21 and before passing any such order, the procedure laid down under Regulation 28 has to be undergone. The proceedings are in the nature of adjudicating upon the right of a licence holder to continue his said occupation, and the order of suspension or cancellation has the effect of coming in the way of his business for any alleged misconduct. No judicial pronouncement is called for to substantiate the view that any proceedings of this nature can only be quasi-judicial proceedings and the authority deciding on such an issue acts as a quasi-judicial authority.
10. Some changes have been brought in the Customs Act, 1962, amongst others by Act 44 of 1980, which became effective from 11-10-1982. By the said Act 44 of 1980, major changes and amendments were brought in Ch. XV of the Customs Act, 1962 and amongst others, Section 129 was amended to bring the Customs, Excise and Gold (Control) Appellate Tribunal into existence. Section 129-A was inserted to provide for the orders against which appeal could lie to the Tribunal, where Clause (a) to Sub-section (1) reads thus:
"a decision or order passed by the Collector of Customs as an adjudicating authority."
11. Significantly under the same amending Act 44 of 1980, there was some amendment in Section 2 of the Customs Act, 1962, and the definition of the word "adjudicating authority" was inserted. The said word, till then was not defined. The definition of the word "adjudicating authority" now given in Section 2(1) of the Act, reads thus:
"Adjudicating Authority" means any authority competent to pass any order or decision under this Act but does not include the Board, Collector (Appeals) or Appellate Tribunal."
This indicates that all the Collectors of Customs except the Collector (Appeals) are the adjudicating authority, in relation to orders passed or decisions given under any of the provisions of the Act.
12. Section 146 of the Customs Act, obviously is a part of the statute which provides for the institution of Customs House Agent, and by virtue of the Regulation's made there-under the Collector of Customs is designated as the Controlling Authority in that regard. Whatever decisions that he takes or order that he passes in that regard, thus amounts to a decision taken or order passed under the Act, and that makes him an "adjudicating authority" as defined under Section 2(1) of the Customs Act and by virtue of Section 129(1)(a) of the Act, the appeal against such order would lie to the Tribunal.
13. It was argued that the order passed is the one under Regulation 21, and not under the statutory provisions. Regulations however stand in the category of the orders passed for the purpose of proper implementation of the statutory provisions. They are always subsidiary to and in consonance with the statutory provisions. They are deemed to be part and parcel of the statutory provision under which they are made, and merely because the Collector has passed order by virtue of his powers under the Regulations, it cannot be said that the same is not passed under the statute.
14. An argument was also advanced that despite the general provisions regarding appeals in the statute, Section 146(2) of the Customs Act, specifically provides for framing of Regulations as regards proper forum for appeal, meaning thereby that it was not contemplated that general provisions regarding appeals should apply. The argument which apparently sounds forceful, has, however, to be appreciated considering certain relevant factors, namely, the said provision existed since the Customs Act, 1962 was enacted. As indicated herein above, subsequent to the enactment, some amendments have taken place, and some relevant provisions have been amended or inserted, by Act 44 of 1980, whereunder a specific forum has been provided for hearing of the Appeals, and the adjudicating authority has been defined. If that forum has been duly empowered to hear all the appeals, arising out of the orders passed or decisions taken under the Act, then the enabling provisions to constitute or specify a forum for the appeal, by making Regulation in that regard becomes redundent. This is what appears to have happened here. We get fortified in our said view, by the fact that though the Govt. in earlier Regulations of 1964, did provide for the Appellate forum, but conspiciously not made any provision in the existing set of Regulations which have been framed after 1980, i.e. in 1984. Therefore, merely because Section 146(2) entitles the Board to provide appropriate forum for appeal, in this regard, it cannot be said that the general forum provided under the statute is not invested with such powers.
15. Even otherwise, a fact remains that the Regulations of 1984 do not provide for the Appellate forum and in absence of specific forum prescribed thereunder, the forum provided for under the statute has the authority. It may be made clear here, that the reasonings given here, are only for the purpose of negativing the submissions made, and, as discussed earlier, we hold that by virtue of Section 129A of the Act, the Tribunal is the only competent forum to hear the appeal against the order of the Collector, inasmuch as the order of suspension has been passed by the Collector as an adjudicating authority and it is not hit by the first proviso to the said Section 129-A.
16. In the result, we hold that the appeal against the order of the Collector of Customs, suspending or cancelling the licence under Regulation 21, would lie to the Tribunal and the Tribunal has to entertain the same.