1987 (2) TMI 217 - AT - Customs

Summary

Issues Involved:
1. Competence and maintainability of the application under Section 129D of the Customs Act.
2. Appropriateness of the Board's directive to the Collector of Customs.
3. Specification of points for determination by the Tribunal.
4. Jurisdiction and powers of the Tribunal under Section 129D.
5. Grant of stay of the operation of the order in original.
6. Interpretation of Section 129D and related procedural rules.

Detailed Analysis:

1. Competence and Maintainability of the Application under Section 129D:
The primary issue was whether the application made by the Collector of Customs under Section 129D(4) was competent and maintainable. The Tribunal examined the statutory provisions and concluded that the application was not maintainable because the Board directed the Collector of Customs to apply to the Tribunal, whereas the adjudicating authority was the Additional Collector of Customs. The Tribunal emphasized that only the officer who made the adjudicating decision should be directed to apply, as per the legislative mandate in Section 129D.

2. Appropriateness of the Board's Directive to the Collector of Customs:
The Tribunal scrutinized the Board's directive and found it to be flawed. The Board directed the Collector of Customs, not the Additional Collector who passed the adjudication order, to apply to the Tribunal. The Tribunal held that the Board's directive should have been addressed to the Additional Collector, as he was the adjudicating authority. The endorsement to the Additional Collector was deemed ineffective.

3. Specification of Points for Determination by the Tribunal:
The Tribunal noted that the Board did not specify the points for determination by the Tribunal in its directive. The Board's order lacked clear points for determination and instead included general directions for setting aside the order and remanding the case for de novo examination. The Tribunal emphasized that Section 129D requires specific points to be formulated for determination, which was not done in this case.

4. Jurisdiction and Powers of the Tribunal under Section 129D:
The Tribunal discussed whether it had the jurisdiction to grant stay and whether it could act in an advisory capacity. The majority opinion held that the Tribunal has appellate jurisdiction under Section 129D and can decide on facts and points of law, including granting stay. However, the Tribunal cannot remand or modify orders beyond the specified points for determination.

5. Grant of Stay of the Operation of the Order in Original:
The Tribunal examined the request for stay and concluded that it was not competent to grant stay in this context. The application for stay was dismissed as infructuous due to an existing stay order from the Bombay High Court. The Tribunal reiterated that its jurisdiction under Section 129D does not extend to granting stay orders.

6. Interpretation of Section 129D and Related Procedural Rules:
The Tribunal analyzed the interpretation of Section 129D and related procedural rules. The majority opinion favored a harmonious construction that allows the Board to direct the Collector of Customs to apply to the Tribunal, even if the adjudicating authority was an Additional Collector. This interpretation aimed to avoid anomalies and ensure the effective implementation of the statutory provisions.

Separate Judgments:

Judgment by M. Gouri Shankar Murthy:
Murthy held that the application was not maintainable as the Board directed the wrong officer (Collector instead of Additional Collector) and did not specify points for determination. He emphasized the plain and unambiguous language of Section 129D and rejected the application and stay request.

Judgment by D.C. Mandal:
Mandal disagreed with Murthy and held that the application was maintainable. He argued for a harmonious interpretation of Section 129D, allowing the Board to direct the Collector of Customs to apply to the Tribunal. He also held that the Tribunal has appellate jurisdiction under Section 129D and can grant stay.

Judgment by K.S. Venkataramani:
Venkataramani agreed with Mandal, emphasizing the need for a purposive interpretation of Section 129D to ensure the effective implementation of the Customs Act. He supported the view that the application was maintainable and that the Tribunal has the authority to grant stay.

Final Order:
In accordance with the majority view, the Tribunal held that the application under Section 129D was maintainable. However, the application for stay was dismissed. The case was to be posted for hearing on merits in due course.