2014 (4) TMI 802 - HC - Customs

Authorization to Assistant Commissioner to file appeal against the Order passed by Additional Commissioner - such authority - Whether authorization to Assistant Commissioner in terms of Section 129D(2) to file an appeal against the Order-in-Original passed by the Additional Commissioner is legally sustainable Held that - From bare reading of section 129D(2) as it stood prior to 2006, it is clear that only an adjudicating authority could be directed/authorised to file appeal before the Commissioner (Appeals), being such authority , for determination of such points arising out of the decision or order as may be specified by the Commissioner of Customs in his order - Even the reliance placed on section 129D(4) by learned counsel appearing for the appellant, in support of his submission, also is of no avail to take their case further - Sub-section (4) of Section 129D of the Act cannot be read in isolation - Thus, no reason is found to interfere with the order dated 30.11.2004 impugned in the present appeal Decided against Appellant.

Summary

Issues:
1. Authorization of Assistant Commissioner under section 129D(2) of the Customs Act, 1962 to file an appeal.
2. Interpretation of the provisions of section 129D(2) of the Act.
3. Impact of the amendment in Act 29 of 2006 on the authorization process.

Analysis:

1. The primary issue in this case revolves around the authorization granted to the Assistant Commissioner to file an appeal under section 129D(2) of the Customs Act, 1962. The Tribunal set aside the order passed by the Commissioner of Customs (Appeals) solely on the ground that the Assistant Commissioner lacked the legal authority to file the appeal. The Tribunal emphasized that the authority who passed the original order should be directed to file the appeal before the Commissioner (Appeals), as per the provisions of section 129D(2). The Tribunal found that in this case, the Assistant Commissioner, who was not the authority passing the original order, was authorized to file the appeal, rendering the order improper and illegal. The judgment cited by the Tribunal supported this interpretation, leading to the setting aside of the Commissioner (Appeals) order and allowing the appeal.

2. The interpretation of the provisions of section 129D(2) of the Act was crucial in determining the validity of the authorization process. The Tribunal highlighted that prior to the amendment in Act 29 of 2006, only the adjudicating authority could be directed or authorized to file an appeal before the Commissioner (Appeals) as "such authority." The Tribunal emphasized that the reliance on sub-section (4) of section 129D by the appellant's counsel did not support their case. The Tribunal concluded that the authorization process must align with the specific requirements outlined in the Act, and in this case, the authorization to the Assistant Commissioner did not meet those requirements.

3. The impact of the amendment in Act 29 of 2006 on the authorization process was also a point of contention. The amendment substituted the expression "such authority" with "such authority or any officer of customs subordinate to him." The appellant's counsel argued that the Assistant Commissioner, being subordinate to the Commissioner, was justified in being directed to file the appeal. However, the Tribunal rejected this argument, stating that the reliance on the amended provision was incorrect and misplaced. The Tribunal held that the amendment did not change the fundamental requirement that only the adjudicating authority could be authorized to file an appeal before the Commissioner (Appeals), emphasizing that the amendment was prospective in nature.

In conclusion, the High Court dismissed the appeal, upholding the Tribunal's decision that the authorization process for filing the appeal did not comply with the statutory requirements of the Customs Act, 1962. The judgment underscored the importance of aligning the authorization with the specific provisions of the Act and highlighted the significance of the authority who passed the original order in the appeal process.