Customs, Excise and Gold Tribunal - Calcutta
Commissioner Of Customs (Preventive), ... vs Biswajit Dutta on 5 November, 2001
Equivalent citations: 2002(150)ELT105(TRI-KOLKATA)
JUDGMENT
Archana Wadhwa
1. Vide the impugned order Commissioner of Customs (Appeals) has dismissed the appeal filed by the Revenue before him on the ground that the impugned order was passed by the Deputy Commissioner of Customs (Prev.), West Bengal, Calcutta but the appeal petition was filed by the Asst.Commissioner of Customs (Preve. Review), Calcutta. By referring to the provisions of Section 129D of the Customs Act, 1962 and by relying upon the Tribunal's decision in the case of Chief Commissioner, Calcutta v. Arvind Exports and Ors. -2000(41) RLT 915 (CEGAT) he has concluded that the appeal filed by the Revenue was not legal and as such without going into the merits of the case he has dismissed the same.
2. The Revenue has challenged the above order before Tribunal. in their memo of appeal they have contended that in terms of the provisions of Section 129D(2) and 129D(4) of the Customs Act, 1962, Commissioner of Customs can direct any officer of customs and can authorise him to file an appeal before Commissioner (Appeals). They are also aggrieved by the fact that Commissioner (Appeals) has taken note of the Tribunal's decision reported in 2001 (41) RLT 915(CEGAT) suo moto. The Revenue's stand is that the ratio of the said judgment will not apply to all the cases and was given only in a particular case. Accordingly they have prayed for setting aside the impugned order and remand the matter to Commissioner (Appeals) for decision on merits.
3. I have heard Shri A.K. Mondal, ld.JDR for the Revenue. Noboty has appeared on behalf of the respondents.
4. As per the provisions of Section 129D(2) of the Customs Act Commissioner of Customs can examine the records of any proceedings of adjudication passed by an authority subordinate to him and can direct him to apply to Commissioner (Appeals) for determination of same points mentioned in his order. For better appreciation the said provisions of Section 129D(2) are reproduced below:-
(2) The (Commissioner of Customs) may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority to apply to the (Commissioner (Appeals)) for 'the determination of such points arising out of the decision or order as may be specified by the (Commissioner of Customs) in his order.
(emphasis provided)
5. It is seen from the above provisions that the direction has to be issued by the commissioner to the authority who has passed the adjudication order. This becomes evident from the use of expression 'such authority'. The Tribunal in the case of CC, Bangalore v. Laxmi & Co. -1999 (34) RLT 558 (CEGAT) has held that inasmuch as the appeal was not filed by the same authority who had passed the order-in-original impugned before the Tribunal, the appeal was not maintainable. The said decision was arrived at by following the Hon'ble Apex Court's judgment in the case of CCE v. M.M. Rubber co. -1991 (55) ELT 289 (SC). The relevant paragraph, as extracted in the above decision of Laxmi & Co. is being reproduced below for better appreciation.:-
"It may be seen that the direction to file an appeal under these two sub-sections by the Board and the Collector, as the case may be, is to the very adjudicating authority who would otherwise be bound by his own order and not expected to be aggrieved by the same. When an appeal is filed on such direction, the appellants will be the adjudicating authority himself and not the authority who gave the directions".
6. I also find that the Tribunal in the case of CCE v. Yash Rasain and Ors. -2000 (38) RLT 343 (CEGAT) has held that the provisions of Section 35E(2) of Central excise Act, 1944, which are pari materia with the provisions of Section 129D, does not empower Commissioner to authorise Superintendent (Legal/appeal) to file appeal against an order passed by Commissioner (Appeals). The appeal is to be filed by the adjudicating authority.
7. The decision relied upon by the Commissioner (Appeals) as reported in 2000 (41) RLT 915 (CEGAT) is also to the same effect. As such I do not find any merits in the Revenue's appeal and reject the same.
(Pronounced)