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TMI Blog1989 (5) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... or the appellant has taken support from an Order No. 21/87 published in the Gazette of India, October 10,1987 [Part I - Section 2] Page 1224. In order to appreciate the controversy, we set out below the order reproduced in the aforesaid Gazette:- No. 21/87 - On transfer the following officers of the grade of Deputy Collector of Customs and Central Excise assumed charge of the post indicated against each with effect from the dates mentioned in Column 4 :- Sl. No. Name of the officer Posting given Date of assumption of charge 25 K.S. Sivaraman Addl. Collr. of Customs, Delhi. 08-12-1986 It is also submitted on both sides that under a separate order relating to powers of adjudication of various officers of Customs, the case was fit to be adjudicated by a Deputy Collector of Customs. An extract from Central Board of Excise and Customs letter F. No. 437/8/76-Cus. IV dated October 12,1976 is reproduced below :- After careful consideration in the Board, it has been decided that in partial modification of Board s earlier instructions contained in their letter No. 22-9-1979-Cus. IV dated the 8th June, 1970, other condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case No. 4830/87 dated 9-11-1987 (the instant case), I was only Addl. Collector of Customs. On the relevant date I was not notified as Deputy Collector of Customs also . A copy of the said letter has been placed on record of the Tribunal by the learned SDR. Question that arises for consideration now is whether Shri K.S. Sivaraman in view of the foregoing material was acting in dual capacity as Addl. Collector of Customs and as Deputy Collector of Customs or was he acting only in a single capacity as Addl. Collector of Customs w.e.f. 8-12-1986. If he is taken to act as discharging two capacities mentioned above, then the impugned order which indicates to have been passed by a Deputy Collector of Customs, can be appealed against only to the Collector (Appeals). 8. It is admitted on both sides that there is no grade of Addl. Collector of Customs at present in the Indian Customs and Central Excise service. It is only that some of the Deputy Collectors are designated as Addl. Collectors in some of the Collectorates to take over the burden of adjudication work of the Collector of Customs because statutorily Addl. Collector of Customs has been treated on par with Collector of Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Collector of Customs did not arise since he continued to be in the grade of Deputy Collector of Customs and Central Excise, as is apparent from order No. 21/87 published in the Gazette of India, October 10,1987. 12. Learned Consultant has drawn attention to Section 5(2) of the Customs Act which enables an officer of Customs to exercise the powers and discharge the duties conferred or imposed under the Customs Act on any other officer of Customs subordinate to the former. This plea is also not tenable. It cannot be held that a Deputy Collector of Customs is subordinate to the Addl. Collector of Customs in the grade of Deputy Collector of Customs. 13. In view of the foregoing discussion, we are of the view that the impugned order has been passed by the Deputy Collector of Customs as shown therein and therefore, the appeal thereof would lie to the Collector of Customs (Appeals). Accordingly, the appeal is returned as non-maintainable. 14. [Order per: G.P. Agarwal, Member (J)]. - I have had the advantage of reading the judgment prepared by my learned Brother Shri P.C. Jain, Member (Technical) and feel unable to agree with him. 15. In the instant case at the time of hearing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of Customs or was he acting only in a single capacity as Additional Collector of Customs. In order to decide this question my learned Brother considered various letters issued by the Central Board of Excise and Customs and also certain orders published in the Gazette and after so considering concluded that the impugned order was passed by the said officer Shri K.S. Sivaraman in the capacity of Deputy Collector of Customs and therefore the instant appeal would lie to the Collector of Customs (Appeals) and not to the Tribunal. While concluding so my learned Brother has ignored the said Orders passed by the Tribunal observing as follows - 11. We have gone through these orders relied upon by the learned Consultant but we find that the question of dual capacity exercisable by a person and the effect thereof in the absence of such dual capacity, as has been set out above, was not brought to the notice of the learned Members of the Tribunal. They appear to have gone by the letter of Shri K.S. Sivaraman that on the date of adjudication in those cases he was notified as Addl. Collector of Customs and he was not notified as a Deputy Collector of Customs also. We feel that the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that even though he was not notified as Deputy Collector of Customs he continued to be so since he was in the grade of Deputy Collector of Customs, particularly when Shri K.S. Sivaraman is not before us. 19. In view of the above the judgments rendered by this Tribunal in the case of Shri Tarlochan Singh, (supra) and Amin Abdul Gani, (supra) apply on all fours to the present case and cannot be ignored as done by my learned Brother. In the result I hold that the appeal lies to the Tribunal. ORDER OF REFERENCE Since there is a difference of opinion between us the following question requires to be decided by another Member in terms of sub-sec. (5) of Sec. 129-D of the Customs Act, 1962 - Whether in the facts and circumstances of the case the present appeal is maintainable. Let the papers be placed before the Hon ble Sr. Vice-President for referring the aforesaid question according to sub-sec. (5) of Sec. 129-D of the Customs Act, 1962. 20. [Order per: I.J. Rao, Member (T)]. - Senior Vice-President referred this appeal to me for deciding the point of difference that has arisen, so as to arrive at a majority decision by the Tribunal. Accordingly, I heard both the parties t ..... 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