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TMI Blog1989 (7) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... nematographic colour films, was concerned. Northern Plastics produced an import licence and claimed benefit of two exemption Notifications. The Collector of Central Excise, Rajkot, after due process rejected the claim for concession and released the goods on payment of duty. 3. The importation at Bombay was also allowed on similar terms. Northern Plastics offered to pay duty at the full rate and produced an Additional Licence. The order to release the goods on payment of duty and under the Additional Licence were passed by the Collector in the file. There is no indication that a formal order has been issued. However, Northern Plastics paid the duty and sought to clear the goods. 4. HPF felt aggrieved by the decision of the Customs at Bombay and Rajkot to release the goods to Northern Plastics. It is their plea that the release of the goods to Northern Plastics was against law and that it caused a grievance to them. They, therefore, filed these two appeals. 5. It is in this background that Northern Plastics filed the miscellaneous applications submitting that HPF are not the aggrieved persons and that, therefore, their appeals are not maintainable (Miscellaneous application No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Iraniraya [1989 (40) E.L.T. 3 (Bombay)]. 10. Shri Kantawala argued that the right to appeal is not an inherent right but must be conferred by the Statute either specifically or by necessary implications. In this context the learned Advocate cited the judgment of the Supreme Court in Gangabhai v. Vijaya Kumar[AIR 1974 S.C. 1126]. He argued that in the light of this judgment the position is that if a person has to maintain an appeal it is for him to establish that he has such right. He referred to decisions by the CEGAT having a bearing on the question of a right to appeal. These were as follows: 1. Hindustan Aeronautic Ltd. v. Collector of Customs [1983 (14) E.L.T. 2012] 2. Potychem Ltd. v. Collector of Customs, Bombay [1987 (30) E.L.T. 1007] 3. Rajesh K. Bhansali v. Collector of Customs [1988 (38) E.L.T. 208] 11. The learned Advocate further argued that Section 129-A of the Act does not confer a right of appeal on anybody but only on a person who by the direct act of the Collector is aggrieved. He submitted that such person should have had something done or determined against him by the Collector. Shri Kantawala argued that HPF are not such persons and they are not adver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued including one by the Ministry of Finance under Section 25(1) of the Customs Act (hereinafter referred as Act) (Notification No. 216/88) which exempted jumbo graphic films and the photographic colour papers of specific description from duty subject to two conditions including one that the importer should hold an industrial licence under IDR Act for Slitting and Confectioning of photo-sensitized material from jumbo rolls. 13. The learned Advocate submitted on behalf of the HPF that Northern Plastics are not entitled to the importation or concessional rate of duty. He gave detailed reasons for the same which are not relevant for the purpose of deciding the preliminary objection of maintainability of the appeals. Suffice to say that, as mentioned earlier, that the learned Advocate argued that the orders passed by the Collectors of Customs, Bombay and Rajkot impugned in these two appeals are totally against legal provisions and that they harm the interests of the HPF which makes them aggrieved persons. 14. Shri Sanghi s main submission was that Northern Plastics were not the actual users which they have to be as a condition for importing the goods under OGL. He submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n aggrieved person . This led to the amendment to the Statute enabling the Collector to file an appeal. He questioned the claims of HPF that they are helping the country s economy and denied that there was any illegality committed by Northern Plastics. He also submitted that it was significant to note that the Hon ble Supreme Court itself did not make HPF a party respondent in Special Leave Application granted in Civil Appeal No. 2376/89. The learned Advocate pleaded that in the circumstances HPF have no right of appeal and both these appeals should be dismissed on this ground alone. 19. Shri Kantawala also objected to the appeal against the Bombay Collector s order on the ground that there was no order original and no certified copy thereof. He submitted that the Scheme of the Customs Act relating to the Tribunal contemplates only two parties viz. the Importer and the Collector and the third party is not contemplated. He submitted that a competitor cannot be an aggrieved party and pointed out that Northern Plastics paid full duty. The learned Advocate emphasised that if a monopoly is created by a statute a breach of such monopoly may lead to a grievance. But no such monopoly ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1983 E.L.T. 974 (T)] and submitted that in that judgment it was hold that a purchaser is not an aggrieved person. But here HPF is not merely a consumer but a custodian of the country s economic interests even though in a restricted field. Since the Collector s decision harms the interests of HPF, Shri Sunder Rajan submitted that since Northern Plastics has no industrial licence, HPF should be considered as persons aggrieved. He referred to a judgment of the Tribunal in Tata Oil Mills Company v. Collector [1986 (24) E.L.T. 290 (Larger Bench (Tribunal)] and pointed out that the Tribunal allowed interveners whose appeals were already decided by the Tribunal. Referring to the arguments of Shri Kantawala that in respect of the appeals against the Bombay Collector s orders there was no certified copy, Shri Sunder Rajan argued that this was not a statutory requirement but was only a procedural one and that the omission could be remedied. He also argued that the extract of a note-sheet (filed by HPF in Bombay appeal) is an order . Finally Shri Sunder Rajan pleaded that even a condemned person is given an opportunity to have his say before he is hanged and HPF s appeals should not be dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the import of goods and it contains provisions by which only imports covered by licences are permitted and if there is no valid licence the goods can be confiscated. Therefore, the Act indirectly serves the purpose of the Government in developing the economy of the country in the manner they deem fit. The Government have powers to restrict imports, to ban them and to confiscate imported goods if such imports are made against the provisions of the Customs Act or any allied law. We make these observations as the Act is only an instrument for achieving the economic and technological aims of the Government in an indirect way. It does not concern itself directly with such aims. 26. We do not want to enter into the merits of the arguments put forth on behalf of HPF about the harm that the two importations in question would cause them if the two orders passed by the Collectors are not set aside. There are no details and no solid evidence about it. It is quite possible that HPF may not find it conducive to their own activities if imports of Jumbo rolls are allowed to others. But does it make the persons aggrieved in terms of Section 129A of the Act? 27. We agree that the law and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Authority was not a person aggrieved who can appeal against a decision of a court of summary jurisdiction quashing an enforcement notice. We have culled out these comments as they appear, at least remotely, to be relevant to the facts of the present matter. 30. Keeping in mind that we have to act within the scope of the Customs Act, the following two extracts from Venkataramaiya s Law Lexicon and Legal Maxims (2nd Edn.) seem to be relevant :- The true principle is to determine whether the applicant has an interest distinct from the general inconvenience which may be suffered by the law being wrongly administered." - Thiruvengadam v.Muthu Chettiar, A.I.R. 1970 Mad. 34 at p. 37: (1969) 1 M.L.J. 143. The term aggrieved is nowhere in the Criminal Procedure Code, nor is there any indication of the kind of grievance which may qualify a man to complain. Any fanciful or sentimental grievance would not suffice; it must be such a grievance as the law can appreciate, it must be what has been termed a legal grievance, and not a start pro ratione voluntas reasons. It is obviously impossible to lay down any inflexible rule for determining in every case whether complainant is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Supreme Court was one by practising lawyers raising important questions relating to independence of judiciary. The Hon ble Judges in para 25 of the Judgment observed that practising lawyers have a vital interest in the independence of the judiciary and if any unconstitutional or illegal action is taken by the State or any public authority which has the effect of impairing the independence of the judiciary, they would certainly be interested in challenging the constitutionality or legality of such action. They had clearly a concern deeper than that of a busybody and they cannot be told off at the gates. Concurring with these observations, Hon ble Mr. Justice Tulzapurkar observed that the practising lawyers, who are nothing short of partners in the task of administration of justice undertaken by the Judges, are vitally interested in the maintenance of a fearless and an independent judiciary. 33. These observations were made when the question of locus standi came up. The independence of judiciary, Constitutional rights and other exalted questions were before the Bench. The entire discussion that took place was with reference to the Constitution of India. We cannot claim any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be understood in its normal meaning and in the context of the Central Excise Act. The Tribunal held that Mahendra and Mahendra (who indirectly suffered because they were the purchasers of the goods) had no right of appeal. 38. In addition to these judgments of the Tribunal, the judgment of the Bombay High Court in Atlas Exporters and Another v. K.V. Iraniraya [1989 (40) E.L.T. 3 (Bom.)] was also brought to our notice. The High Court was examining the word person aggrieved in relation to the Handbook on Import and Export Procedure. While doing so they referred to a judgment under the English Law and observed that a person aggrieved cannot be equated with a party who is not pleased with an order passed. It has to be a person whose rights have been adversely affected. In appeals before us it is the correctness of the Collector s order which can be questioned. The rights of parties can be agitated only in Civil Courts. 39. Much was said about the judgment of the Hon ble Supreme Court in Bar Council of Maharashtra v. M.V. Dabholkor (AIR 1975 SC 2092). Therein the question arose whether the Bar Council was a person aggrieved. The Supreme Court in para 30 observed as follows: T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tte of the profession. 41. In para 27 of the same judgment, the Hon ble Supreme Court observed that the meaning of the words a person aggrieved may vary according to the context of the statute. Taking note of the normal practice, the Supreme Court observed that the term should be given a more liberal approach in the background of the statutes which do not deal with property rights but deal with professional conduct and morality. In the present appeals, we are concerned with the correctness of the importation and not any professional conduct or morality. What is in issue is whether the HPF have got a right of appeal. The judgment of the SC in Dabholkor (supra), therefore, does not help HPF. 42. We have also respectfully perused the Supreme Court s judgment in Smt. Ganga Bai v. Vijaykumar and Others (AIR 1974 SC 1126). In this Judgment their Lordships made a clear distinction between a suit and an appeal. The legal position as found therein, is clear that the right of appeal is not an inherent right nor a natural right. The exercise thereof has to be traced to the concerned statute conferring the right. In this context the Hon ble Court observed as follows :- There is a basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 226, the setting up of a new rice-mill by another - even if such setting up be in contravention of Section 8(3) (c) of the Rice Milling Industry (Regulation) Act, 1958 - because no right vested in such an applicant is infringed." 46. All this discussion brings us to another part of the same judgment where the Hon ble Court said: .....The expression aggrieved person" denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, its features can be descried in a broad tentative manner. Its scope and meaning depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner s interest, and the nature and extent of the prejudice or inquiry suffered by him. English Courts have sometimes put a restricted and sometimes a wide construction on the expression aggrieved person . However, some general tests have been devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus standi or standing to invoke certiora ..... X X X X Extracts X X X X X X X X Extracts X X X X
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