1991 (11) TMI 131 - AT - Customs

Summary

Issues Involved:
1. Whether the proceedings can be construed as adjudication proceedings.
2. Whether the appeal lies to the Tribunal or the Collector (Appeals).

Summary:

Issue 1: Adjudication Proceedings
The primary issue was whether the proceedings initiated by the Assistant Collector of Customs could be considered as adjudication proceedings. The Tribunal noted that the communication from the Assistant Collector indicated a clear decision that "contract benefit is not available for the goods imported under cover of REP Licence." This was deemed a determination, making it an appealable order. The Tribunal referenced earlier decisions, emphasizing that any order or decision passed under the Act and Rules is considered an order by the Adjudicating Authority and hence appealable.

Issue 2: Appropriate Appellate Authority
The second issue was whether the appeal should be filed with the Tribunal or the Collector (Appeals). The Tribunal highlighted that u/s 128 of the Act, appeals against decisions by officers lower in rank than a Collector should be made to the Collector (Appeals). The appellants argued that since the impugned order was directed by the Collector, it should be treated as an order by the Collector, making the Tribunal the appropriate appellate body. However, the Tribunal concluded that the Assistant Collector, who signed the order, was the adjudicating authority. Therefore, the appeal should be filed with the Collector (Appeals).

Separate Judgment by Technical Member:
The Technical Member disagreed on the second issue, asserting that the order was effectively that of the Collector, as the Assistant Collector merely communicated the Collector's decision. Therefore, the appeal should lie with the Tribunal. The Technical Member also noted that the order lacked reasons and violated principles of natural justice, recommending a remand for de novo consideration by the Collector.

Final Order:
In view of the majority opinion, the impugned order was set aside, and the matter was remanded to the Collector of Customs, Calcutta, for de novo adjudication in accordance with the law and principles of natural justice.