2011 (2) TMI 8 - HC - Customs

Appeals Delegate delegation of power - as the order was made by the Additional Chief Controller as a delate of the Chief Controller it will be deemed to be an order made by the Chief Controller himself therefore the Chief Controller could not have preferred an appeal against the order made by the Additional Chief Controller under the provisions of Section 4M of the Act. In our opinion therefore the appeal filed by the Chief Controller before the Central Government is not competent and therefore the petition will have to be allowed. The petition accordingly succeeds and is allowed. It is held that the Appeal before the Central Government under Section 4M of the Act cannot be filed by the Chief Controller against the order of the Additional Chief Controller. The order at Exh.J made in that Appeal is also set aside. Rule made absolute accordingly. No order as to costs.

Issues Involved:
1. Validity of the import licenses used by the Petitioners.
2. Competence of the Chief Controller of Imports and Exports to file an appeal under Section 4M of the Import Export (Control) Act, 1947.
3. Interpretation of "any person aggrieved" under Section 4M of the Act.
4. Delegation of authority and its implications on appeal rights.

Issue-wise Detailed Analysis:

1. Validity of the import licenses used by the Petitioners:
The Petitioners, manufacturers of electronic items, imported Colour Picture Tubes (CPT) and Video Tape Deck Mechanism (VTDM) using Additional Licenses issued before 21-3-1989. Despite the deletion of these items from the permissible import list by Public Notice No. 109 on 21-3-1989, the Additional Chief Controller of Imports and Exports held that imports under the Additional Licenses were valid. This decision was challenged by the Chief Controller of Imports and Exports.

2. Competence of the Chief Controller of Imports and Exports to file an appeal under Section 4M of the Import Export (Control) Act, 1947:
The core issue was whether the Chief Controller could file an appeal against the order of the Additional Chief Controller under Section 4M of the Act. The court noted that the appeal was filed by the Chief Controller in his capacity as a Head of the Department. However, it was argued that the Chief Controller could not be considered an "aggrieved person" as per the provisions of the Act.

3. Interpretation of "any person aggrieved" under Section 4M of the Act:
The Petitioners' counsel argued that only a party directly affected by the order could file an appeal under Section 4M(1)(a) of the Act. They cited various enactments and legal precedents to support that departmental authorities typically do not file appeals against decisions made by their own department unless explicitly provided for by statute. The Respondents' counsel countered that as the Head of the Department, the Chief Controller had the authority to file such an appeal.

4. Delegation of authority and its implications on appeal rights:
The court examined the delegation of authority under the Import (Control) Order, 1955, which allowed the Additional Chief Controller to act as a delegate of the Chief Controller. It was determined that when the Additional Chief Controller decides an appeal, it is effectively an order made by the Chief Controller himself. Consequently, the Chief Controller could not file an appeal against his own order, aligning with the legal principle that a principal cannot appeal against the decision of their delegate.

Conclusion:
The court concluded that the Chief Controller of Imports and Exports could not file an appeal against the order of the Additional Chief Controller under Section 4M of the Act. The appeal filed by the Chief Controller was deemed not competent, and the petition was allowed. The court set aside the ex parte order made by the Central Government and ruled that the department could pursue other legal remedies against the order of the Additional Chief Controller if available. The rule was made absolute, and no costs were awarded.

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