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TMI Blog2010 (7) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... ouse, No.60, Rajaji Salai Chennai, 600 001. For appellant in C.M.A.No.486/2009: Mr.K.Ravichandra Babu For respondents in W.P.No.29129/2008: SCGSC For 1st respondent in C.M.A.No.486/2009: Mr.V.Ramachandran For petitioner in W.P.No.29129/2008: Senior Counsel for Mr.S.Shankaravadivelu JUDGMENT M.M.SUNDRESH, J In view of the fact that the parties to both the cases and the issues involved are one and the same, they have been taken up together for disposal. Since the decision in the writ petition depends upon the decision in the appeal, the issue raised in the appeal is taken up for consideration and the parties therein are arrayed as such for the disposal of both the cases. 2. The one and only issue that arises for consideration in the appeal is as to whether an order passed by the Chief Commissioner of Customs as an adjudicating authority is appealable under Section 129-A of the Customs Act, 1962 or not. 3. Facts in brief:- 3.1. The first respondent had imported capital goods under export promotion capital goods (EPCG) Scheme vide Licence No.01500321 dated 21.03.1996, with zero duty issued by the Director General of Foreign Trade (DGFT), New Delhi, in terms of Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Customs passed the order in appeal exercising is powers as Commissioner of Customs? d. Whether the order passed by the Tribunal is inconsistent with the earlier orders in which the Tribunal entertained appeals against the orders of the Chief Commissioner?" 4. Similarly seeking the release of bank guarantees furnished by the first respondent, a writ petition was filed by him based upon the order passed in his favour. In order to appreciate the issue involved in the present appeal, the provisions of the Customs Act, 1962 require consideration. 5. Chapter-I deals with the definitions of the words as well as the the authorities covered under the Act. An adjudication authority has been defined in Section 2(1) of the Act and the same is extracted hereunder: "2(1) "adjudicating authority" means any authority competent to pass any order or decision under this Act, but does not include the Board, [Commissioner (Appeals)] or Appellate Tribunal." Section 2(8) of the Act defines Commissioner of Customs which is as follows: "2(8) "Commissioner of Customs", except for the purposes of Chapter XV, includes an Additional Commissioner of Customs." A proper officer has been def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for an appeal to the Commissioner (Appeals). Such an appeal is provided from an order passed by an officer lower in the rank than a Commissioner of Customs. Section 129 of the Act speaks about the Appellate Tribunal. The Appellate Tribunal would consist of judicial and technical members making it clear that it is an appellate adjudicating forum. Section 129-A makes it clear that an appeal would lie against the order of the Commissioner of Customs as an adjudicating authority. In other words, when a Commissioner of Customs is not an adjudicating authority then no appeal would lie and that is a reason why the Commissioner (Appeals) has been excluded from being an adjudicating authority, since he exercise the power as an appellate authority under Section 128 of the Act. 8. Section 129-A provides for Appeals to the Appellate Tribunal and the same is extracted hereunder: "129-A. Appeals to the Appellate Tribunal.-(1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order- (a) a decision or order passed by the [Commissioner of Customs] as an adjudicating authority; (b) an order passed by the [Commissioner (Appeals)] under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the said power has been exercised in pursuant to the direction issued by the Central Board of Excise and Customs. According to the learned counsel in as much as Section 129-A is very clear the appeal is maintainable. The learned counsel further added that in a case where a construction of a provision would lead to manifest contradiction and against the purpose of the enactment the same would be avoided. In support of his contention, the learned counsel has relied upon the judgment of the Apex Court in SURJIT SINGH v. MAHANAGAR TELEPHONE NIGAM LIMTIED [(2009) 16 SCC 722]. Hence the learned counsel contended that the appeal should be allowed by setting aside the order of the Tribunal and to decide the appeal filed before it on merits. 14. Submissions of the respondents: Mr.V.Ramachandran, learned senior counsel appearing for the first respondent submitted that in as much as the order has been passed by the Chief Commissioner of Customs no appeal would lie against such an order since Section 129-A provides for an appeal only against the order of the Commissioner as an adjudicating authority. In other words, the learned senior counsel while conceding that the order passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E AGENCY LTD.]; (2008) 4 SCC 91 [SUMITOMO CORPORATION v. CDC FINANCIAL SERVICES (MAURITIUS) LTD.] and (2009) 10 SCC 531 [SUPER CASSETTES INDUSTRIES LIMITED v. STATE OF UTTAR PRADESH AND ANOTHER]" Hence the learned senior counsel submitted that the appeal will have to be dismissed and consequentially the writ petition will have to be allowed. 15. As discussed above, a conjoint reading of Section 2(1), 2(8) under Chapter-I and Section 3, 5(2) of Chapter-II and Section 122 would make it clear that a Commissioner of Customs is an adjudicating authority except in the case of Commissioner (Appeals). In other words, a Chief Commissioner of Customs is not an adjudicating authority except in a case he exercise the power under Section 5(2) of the Act. Under Section 2(8) a Commissioner of Customs would include an Additional Commissioner of Customs. The contention of Mr.V.Ramachandran, learned senior counsel, based on Section 5(2) of the Act was that if the order of the Chief Commissioner of Customs is to be treated as an order of any other adjudicating authority, that would lead to an anomalous situation whereby the appeal against the order may have to be preferred before the Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Commissioner (Adjudication) and acts in such a capacity. 16. As observed earlier such a provision is made in order to meet a different situation that would arise for exercising such a power. That is exactly the reason why the Central Board of Excise and Customs has requested the Chief Commissioner of Customs to exercise the power of the Commissioner. 17. Similarly, a proper reading of Chapter-XV would show that an appeal would lie against the adjudicating authority namely the Commissioner (Adjudication) to the Tribunal. Much importance will have to be given the word "as an adjudicating authority". In as much as the adjudicating authority is the Commissioner and the Chief Commissioner takes up such a power of the Commissioner of adjudicate he becomes the Commissioner (Adjudication). That is a reason why Section 129-A speaks specifically about the Commissioner as an adjudicating authority. Therefore it is very clear that as the Chief Commissioner of Customs is not an adjudicating authority but only acts as a Commissioner of Customs. Therefore Section 129-A specifically provides for an appeal against the order passed by the Chief Commissioner of Customs while exercising the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt the High Court decides the case as an High Court and not otherwise. However in the present case on hand the Chief Commissioner exercised the power of Commissioner Customs (Adjudication) and not in his own capacity. 22. In the present case on hand the Chief Commissioner of Customs decided the case as a Commissioner (Adjudication) and not on his own. The further contention of the learned senior counsel that if the Chief Commissioner of Customs exercises the power of an officer subordinate to the Commissioner (Adjudication) then the same cannot be appealled under Section 128 before the Commissioner (Appeals) if it is construed as an order of adjudication passed by such authority cannot also be accepted since no such issue has come up for consideration before us. Further Section 3 of the Act classifies the hierarchy of the officers and we are in respectful agreement with the submissions of the learned counsel for the appellant that the powers of a subordinate officer below the rank of the Commissioner is to be exercised by the Commissioner. In any case in order to interpret the provisions an hypothetical question cannot be the basis. 23. Section 122 of the Act speaks about the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... object and the purpose for which Section 129-A is introduced the same will have to be given proper effect and meaning. Accordingly we hold that an appeal would lie under Section 129-A of the Act. 26. Principles of Literal Construction: As observed earlier the Doctrine of literal construction would also mean that the appeal is maintainable in the present case on hand. If we are to construe the Commissioner (Adjudication) as the one who would also include a Chief Commissioner of Customs acting as Commissioner (Adjudication) then there is no difficulty in holding that the appeal is maintainable. In the present case there is no dispute regarding the exercise of power by the Chief Commissioner of Customs as against the Commissioner (Adjudication). 27. Principles of Purposive Consideration: When the language in a statute does not give a sensible meaning and a construction leads to a manifest contradiction of the apparent purpose of the enactment or to some inconvenience or absurdity, hardship or injustice, presumably not intended a construction may be put upon it which modifies the meaning of the words and even the construction of the sentence. In other words one has to see the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EPPI v. WALLING, 144F (2d) 608 (pp 620), has observed as follows: "The necessary generality in the wordings of many statues, and ineptness of drafting in others frequently compels the Court, as best at they can, to fill in the gaps, an activity which no matter how one may label it, is in part legislative. Thus the Courts in their way, as administrators, in their way perform the task of supplementing statutes. In the case of Courts we call it "interpretation" or "filling the gaps" in the case of administrators we call it "delegation" or authority to supply the details." 29. JUSTICE G.P.SINGH IN PRINCIPLES OF STATUTORY INTERPRETATION, 12th EDITION AT P.298 SAYS THUS: "... a statute must be read as a whole as words are to be understood in their context. Extension of this rule of context permits reference to other statues in pari materia i.e. statutes dealing with the same subject-matter or forming part of the same system." 30. The said observations of the Justice G.P.Singh was quoted with approval by a recent judgment of the Apex Court in S.NAGARAJ v. B.R.VASUDEVA MURTHY [(2010) 3 SCC 353] while construing the principle of harmonious construction. 31. Even assuming for the sake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the legislature is an important factor in relation to interpretation of statutes. The statute law and the case law go side by side and quite often the relationship between them is supplementary. In other words, interpretation is guided by the spirit of the enactment. Interpretation can be literal or functional. Literal interpretation would not look beyond litera legis, while functional interpretation may make some deviation to the letter of the law. Unless the law is logically defective and suffers from conceptual and inherent ambiguity, it should be given its literal meaning. Where the law suffers from ambiguity, it is said: (Peerless General Finance Case, SCC p.450, para 33) "33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say that if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted." 31. The principle of construction of law is stated by HOLMES, J. as under: "You construe a particular clause or expression ..... X X X X Extracts X X X X X X X X Extracts X X X X
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