2010 (7) TMI 183 - HC - Customs

Jurisdiction - The Order in Original came to be made by Additional Collector of Customs under the provisions of the Gold Control Act, 1968 (the Act), against which an appeal was preferred before the Central Excise & Gold Control Appellate Tribunal (as it then was). The Tribunal vide its order came to the conclusion that an order made by Additional Collector of Customs was amenable to appeal only before Commissioner (Appeals) and not before the Tribunal. Held that- section 81 permits filing of appeal before Tribunal against order made by Collector as adjudicating authority. Adjudicating authority means an authority competent to pass order and Additional Collector covered thereunder. Collector of custom includes additional collector. Tribunal ought to have heard appeal. Matter remanded to Tribunal for deciding appeal on merit.

Summary

Issues involved:
1. Jurisdiction of the Tribunal to hear the appeal against the Order in Original under the Gold Control Act, 1968.
2. Interpretation of the definitions of adjudicating authority and Collector of Customs under the relevant Acts.

Comprehensive Analysis:
Issue 1: The petition sought relief by challenging the Order of the Central Excise & Gold Control Appellate Tribunal (CEGAT) dated 21.7.1989 and the Order-in-Original No.61/ADDL. COLLR./88 dated 29.9.1988 passed by the Additional Collector of Customs. The Tribunal concluded that the appeal against the Additional Collector's order should have been filed before the Commissioner (Appeals) and not before the Tribunal. The petitioners argued that the Customs Act defines the Collector of Customs to include an Additional Collector of Customs, thus the Tribunal erred in not entertaining the appeal. The petitioners requested either restoration of the appeal to the Tribunal for fresh adjudication or a decision on merits by the Court.

Issue 2: The Tribunal based its decision on the case of Naginkumar Mamalyabhai v. Collector of Customs & Central Excise, Rajkot, where it was held that orders made under different Acts by the Additional Collector should be appealed before the Collector (Appeals) and not the Tribunal. The Tribunal cited Section 80 of the Gold Control Act, which allows appeals to the Collector (Appeals) against decisions by Gold Control Officers lower in rank than a Collector of Central Excise or Customs. However, Section 81 permits appeals to the Appellate Tribunal against orders made by the Collector of Central Excise or Customs as an adjudicating authority. The Court noted that the term adjudicating authority under the Act includes authorities competent to pass orders under the Act, not excluding an Additional Collector of Customs.

The Court held that the Tribunal misinterpreted the jurisdictional provisions and definitions under the Acts. It clarified that since the Additional Collector of Customs was competent to pass orders under the Gold Control Act, the Tribunal should have heard the appeal on merits. Consequently, the Court restored the appeals to the Tribunal for fresh adjudication, now known as the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, emphasizing the need for expeditious resolution. The petition was allowed with no costs.