Customs, Excise and Gold Tribunal - Delhi
Collector Of Customs vs Dadlani Silk Stores on 19 February, 1997
Equivalent citations: 1997(94)ELT116(TRI-DEL)
ORDER
U.L. Bhat, J. (President)
1. These appeals were once heard for sometime along with a number of other appeals but during the course of hearing these appeals were delinked from the batch. Other appeals were decided by Final Order No. C/905 to 920/96-B, dated 1-10-1996 of a larger Bench. That order was passed following the decision of the same Larger Bench in the appeal relating to K. Mohan & Co. decided on 23-9-1996 which is reported in 1996 (17) R.L.T. 31.
2. Common question arising in these and those appeals is regarding applicability of Notification No. 33/81 to the subject imports. The Larger Bench held that the matter in issue requires fresh consideration after allowing the importer to adduce evidence in regard to the matter in controversy. Accordingly orders were set aside and the cases were remanded.
3. Same result should normally follow in these appeals also but for another contention raised by the Learned Counsel for the respondent in these appeals. Respondent in these appeals is M/s. Dadlani Silk Stores. It was the respondent who placed orders with the foreign suppliers for import of the subject goods. Payment had been effected by the respondent. It appears that respondent sold the goods covered by 3 or 4 consignments to M/s. Ashahi Metal Industries and the goods under one consignment to M/s. Y. King Metals & Alloys on high seas. Appeal C/1499/81 relates to the consignment purchased by M/s. Y. King Metals & Alloys and other appeals relate to consignments covering the goods purchased by M/s. Ashahi Metal Industries.
4. Learned Counsel for Respondent pointed out Public Notice No. 16/78, dated 6-2-1978 of the Bombay Custom House to the effect that in the case of high seas sale the import document should be in the name of the export house concerned and the name of the export house should be noted on the Bill of Entry, that the high seas declaration shall be pasted on the reverse of the original Bill of Entry to enable the purchaser to execute end use bond for the purpose of getting exemption from duty under relevant notifications. It is pointed out that the respondent is an export house and therefore governed by Public Notice. Accordingly, it is pointed out that purchasers agent M/s. Sanghvi Brothers who is a Custom House Agent prepared Bills of Entry showing the name of the respondent the bills were signed by purchasers agent and assessments were made on that basis. According to the respondent release was obtained by the agent on behalf of the purchaser and not on behalf of the respondent and, therefore, the decision of the Assistant Collector negativing the entitlement to the benefit of Notification No. 33/81 did not adversely affect the respondent but adversely affected the two purchasers.
5. Four appeals were presented before the Collector (Appeals) showing the name of the respondent as appellant. One appeal was filed by the clearing agent M/s. Sanghvi Brothers. Other three appeals were filed by Advocate Shri V.N. Deshpande. Custom House Agents were retained by M/s. Ashahi Metal Industries as can be seen from copies of bills submitted by the agent to the principal. Three of the vakalats were signed by representatives of M/s. Ashahi Metal Industries. These circumstances would show that appeals filed before the Collector (Appeals) though in the name of the respondent cannot be attributed to the respondent as the respondent was not a signatory to the appeals and did not authorise the agent or Advocate to file appeals. So the appeals must be deemed to have been filed by purchasers against the Department and the decision of the Collector (Appeals) was in favour of those purchasers holding that benefit under Notification 33/81 was available.
6. Government of India initiated suo motu revision proceedings in respect of the four orders passed by the Collector (Appeals) and issued notice to the respondent in all the four cases and did not issue notice to the purchasers. It is the respondent herein who has been treated as respondent in all the present four appeals and it is the respondent who has retained Counsel to argue appeals. Notice had never gone during the last fifteen years to the purchasers. Since we have held that the orders passed by the Collector (Appeals) were really in favour of purchaser and not the respondent, these appeals against the respondent and without impleading the respective purchasers, are not competent. Question of impleading purchasers at this distant stage does not arise.
7. We hold that the appeals are incompetent and accordingly dismiss the same.