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TMI Blog1990 (4) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 20th March 1987 in the case of bearings imported from Romania, by M/s. Shaheel Enterprises, Bombay, S/10-52/87J dated 20th March 1987, S/10-96/85 dated 20th March 1987, in the case of bearings imported from M/s. Impex Metal by M/s. Lyallpur Machinery imported from Hungary accepted the invoice price based on suppliers prevailing price-list. Following these orders, the Collector accepted the invoice price in the case of imports in 370 cases against which the present appeals are filed. 3. The impugned proceedings are as follows :-"Notes above may please be seen. Dy. Collector s above note makes very clear about the assessment to be followed for the present and future consignments. By the above two files i.e. S/10-181/86 (Romania (A cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various respondents on the ground that the Collector accepted invoice price in respect of imports made from Romania Hungary in his order No. S/10-181/86, S/10-53/87. The note also discloses that the said proposal was put up in the context of earlier orders of the Collector in file No. S/5(EEC)585/84-J where on 4th February 87 he remarked: No refund. Wherever they have paid P.D. they may be adjusted. 5. The Collector simply signed the proposal which means the approval of the proposal. 6. The question, therefore, is whether affixing signature to a note put up to the Collector for approval means a decision or order passed by the Collector of Customs as an adjudicating authority appealable within the meaning of Section 129A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an adjudicating authority;" (3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Collector of Customs, or as the case may be, the other party preferring the appeal. 8. On perusal of the relevant provisions of the Act it discloses that the definition of the adjudicating authority under Section 2(1) of the Act excludes both, Collector (Appeals) or the Appellate Tribunal from its purview, but it is an authority competent to pass any order or decision. Section 122 is the provision under which the Collector is empowered to adjudicate confiscation and penalty. Section 124 provides for giving a reasonable opportunity by the Collector be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note seeking approval to the Action proposed. Therefore, it cannot be said to be an order passed in the capacity as adjudicating authority. Adjudication means giving or pronouncing a judgment or a decree. It presupposes an existence of lis between the department on the one hand and the importers on the other hand and the determination of the lis by the Collector which requires the Collector to Act judicially. In other words it requires giving an opportunity to the party against whom the accusations are made to explain the same. The Collector has neither given an opportunity to the importers nor determined the lis but simply approved the proposal put up to him. Since the Collector is required to act judically the order also requires ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is the allegation against the importer that they have under-in voiced the goods. There is lis/controversy between the deptt. and the importer and the Collector is duty-bound to give an opportunity to the respondents to explain the allegation against them. Therefore, the Collector has to decide judicially and the decision required communication. In the instant case we have dealt with at length in the earlier pargraphs, the manner in which the Collector disposed of the matter. The mere affixing the signature seeking approval of the proposal does not amount to taking a decision judicially. Consequently, it ceases to be a decision. At the most it may be an executive decision which is not appealable under Section 129 Al (a) of the ACT. 15. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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