2010 (7) TMI 67 - HC - Customs

Appeal against the order of Chief commissioner of Customs CCC has acted as adjudicating authority Section 129A of the Customs Act, 1962 Held that - under Section 129-A an appeal is maintainable against the order of the Chief Commissioner of Customs while exercising the power as a Commissioner of Customs (Adjudication). - the order of the Tribunal in refusing to entertain the appeal filed against the order in Original No.173/2001-CAU dated 17.10.2001 is liable to be set aside and accordingly the same is set aside.

Summary

Issues Involved:
1. Whether an order passed by the Chief Commissioner of Customs as an adjudicating authority is appealable under Section 129-A of the Customs Act, 1962.

Issue-wise Detailed Analysis:

1. Appealability of Chief Commissioner of Customs' Order under Section 129-A:
The primary issue in this case is whether an order passed by the Chief Commissioner of Customs, acting as an adjudicating authority, can be appealed under Section 129-A of the Customs Act, 1962.

Facts in Brief:
- The first respondent imported capital goods under the EPCG Scheme with zero duty.
- An investigation led to a show cause notice for misdeclaration, seeking to impose a duty of Rs.6,38,90,487/- along with interest and confiscation.
- The Chief Commissioner of Customs adjudicated the case and dropped the charges.
- Based on a review order, an appeal was made to the Appellate Tribunal, which was dismissed as not maintainable on the ground that an appeal under Section 129-A would only be maintainable against an order passed by the Commissioner of Customs, not the Chief Commissioner of Customs.

Legal Provisions Considered:
- Section 2(1) defines "adjudicating authority" but excludes the Board, Commissioner (Appeals), or Appellate Tribunal.
- Section 2(8) defines "Commissioner of Customs" to include an Additional Commissioner of Customs.
- Section 2(34) defines "proper officer" as the officer assigned those functions by the Board or Commissioner of Customs.
- Section 3 lists the classes of officers of customs, including the Chief Commissioner and Commissioner of Customs.
- Section 5(2) allows an officer of customs to exercise the powers and discharge the duties of any other officer subordinate to him.
- Section 128 provides for an appeal to the Commissioner (Appeals) from an order passed by an officer lower in rank than a Commissioner of Customs.
- Section 129-A specifies that an appeal would lie against the order of the Commissioner of Customs as an adjudicating authority.

Arguments by Appellant:
- The Chief Commissioner of Customs can exercise the power of the Commissioner of Customs under Section 5(2).
- The Chief Commissioner, acting as a Commissioner of Customs, makes the order appealable under Section 129-A.
- The interpretation should avoid manifest contradiction and absurdity, supported by the judgment in SURJIT SINGH v. MAHANAGAR TELEPHONE NIGAM LIMITED.

Arguments by Respondent:
- An order by the Chief Commissioner of Customs is not appealable under Section 129-A as it specifically mentions the Commissioner of Customs.
- Literal interpretation should be applied, and the Tribunal was correct in dismissing the appeal.
- The right to appeal is statutory and cannot be assumed if not explicitly provided.

Court's Analysis:
- A conjoint reading of Sections 2(1), 2(8), 3, 5(2), and 122 indicates that the Chief Commissioner of Customs can act as an adjudicating authority by stepping into the shoes of the Commissioner of Customs.
- The Chief Commissioner of Customs, when acting under Section 5(2), is effectively acting as the Commissioner of Customs (Adjudication), making the order appealable under Section 129-A.
- The literal interpretation supports the appealability of the order, and the purposive interpretation aligns with the legislative intent to provide an exhaustive mechanism for dispute resolution.
- The object of the Act is to ensure that disputes arising from orders of adjudication have a clear appellate path, which includes orders by the Chief Commissioner acting as Commissioner (Adjudication).

Conclusion:
The court concluded that the order passed by the Chief Commissioner of Customs, while exercising the power of Commissioner of Customs (Adjudication), is appealable under Section 129-A of the Customs Act, 1962. The Tribunal's order refusing to entertain the appeal was set aside, and the Tribunal was directed to decide the appeal on merits within three months. The writ petition was dismissed, and the questions of law were answered in favor of the appellant.