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TMI Blog1987 (8) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... re originally not landed at the Bombay Port but the importers paid customs duty on 25.1.82. On behalf of the importer their clearing agent filed a refund claim dated 5.2.82 in respect of the short-landed 17 drums. Subsequently the State Chemicals and Pharmaceuticals Corporation of India Ltd. learnt that those 17 drums were over-carried to Cochin and thereafter landed in Bombay. The clearing agents found the drums damaged. Therefore, there was a survey and the survey disclosed certain shortage. As a result the importers became entitled to the refund of Rs. 5,703.20. The clearing agents made an amended claim dated 27.8.82 amending the grounds on which the refund was sought and also the amount, namely, from Rs. 13,355.51 to Rs. 5,703.20. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority and a quasi-judicial authority before passing an adverse order ought to have given a personal hearing to the party that would be affected by the order and since no such personal hearing was granted the order of the Collector (Appeals) is bad in law. In support of this contention Shri Dhurve relied upon the decision of the Bombay High Court reported in 1987 (31) ELT 636 (Bom.). Shri Dhurve also submitted that decision of the Bombay High Court is binding on the Tribunal and in that connection he relied on the decision of the S.C. reported in 1983 ELT 1342 (SC). Thirdly, Shri Dhurve contended that the Asstt. Collector also had not given personal hearing and, therefore, his order is also bad in law. 4. Shri Prabhu appearing for the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and they had also not taken any ground as to the denial of principles of natural justice. 6. The right of appeal is a statutory right and not a common law remedy. Section 128 of the Customs Act provides an appeal against the order passed by an officer of Customs lower in rank than a Collector of Customs to the Collector (Appeals) by an aggrieved person. Thus, the right is conferred on the aggrieved person and not on any other person. Therefore, it is necessary for the appellants to allege in the appeal memo that the appellant was the aggrieved by the order of the lower authority. From the order of the lower authority it is clear that State Trading Corporation was not a party to the proceedings before the Asstt. Collector. In the Memoran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t desires that he should be heard personally before his appeal is finally decided he should make a specific request to that effect, preferably in the memorandum of appeal or by a separate letter. But then the request should be made before the appeal is finally heard. If an appellant does not avail of the opportunity statutorily provided he cannot complain of lack of opportunity just because the order of the appellate authority was adverse to him. Section 128-A(1) embodies the principles of natural justice. Availing of an opportunity of being heard is optional. It is left to the appellant. The grievance of lack of opportunity of being heard by an appellant who did not avail of the mandate of the statute cannot be countenanced. There is no me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esenting STC in all their matters. Shri Dhurve was questioned as to whether M/s. Kamat Co. were specifically authorised to represent the STC before the Asstt. Collector in this matter. Shri Dhurve admitted that no such specific authorisation was granted; but he reiterated that they were representing the STC in all their matters. Thus, it is clear that when Kamat Co. addressed their letter dated 27.8.82 by which they amended the ground as well as the amount of refund, they were representing a non-existing firm and not STC. The authorisation given by State Chemicals and Pharmaceuticals to M/s. Kamat Co. came to an end when the amalgamation took place. Thus, throughout the proceedings the STC did not evince any interest. In the circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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