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TMI Blog1991 (11) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... contents and form of the proceedings in question are relevant to decide the issues and, accordingly, it is reproduced as under :- "From : Asstt. Collector of Customs, Appraising Group 6, Custom House, Calcutta. To : M/s. Indian Oxygen Ltd., P-43, Taratala Road, Calcutta - 700 088. Gentlemen, Sub : Registration of contract case of P.O. No. Imp/PD/455 dated. 30-7-1990 - Isolation valves & Control Valves. You are hereby informed that Isolation Valves and Control Valves may not be acceptable for project benefit in view of stipulation 4(a) of PN 461/86-Cus of this Custom House, read with PIR '86 since the licence is not specifically issued in the name of the importer covering the project Angle and Collector has specifically directed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cifically directed that contract benefit is not available for the goods imported and the order was merely communicated by the Assistant Collector, this order has to be construed as one which was passed by the Collector. He said that though the order bears the signatures of the Assistant Collector it was only for the limited purpose of communication and the authority who passed an order is Collector and, accordingly, the appeal lies to the Tribunal. He also requested for early disposal of the matter as the goods are still lying with the Customs. 4. Shri S.K. Roy, learned SDR while countering the arguments submitted that this is neither an adjudication proceedings nor an appealable order. It is only a letter of communication observing that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered the submission made by both sides and perused the records. On going through the impugned order, we find that though it is difficult to say that it is an adjudication proceedings in the sense we have understood the meaning of adjudication, but in view of the effective expression of opinion 'that contract benefit is not available for the goods imported under cover of REP Licence', it cannot be said that it is mere a letter and not an adjudication proceedings. This amounts to determination and in view of this clear finding it is a decision against which the appeal lies. In this communication, Assistant Collector referred to the nature of the claim and declined to grant the relief giving the reason for the said conclusion. It was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor. This plea cannot be accepted because of the fact that the Authority who passes an Adjudication Order has to apply his mind. It is settled law that a quasi-judicial authority, while passing an adjudication order has to apply his/her own mind and the administrative order/instruction cannot be treated as an adjudication proceedings. Hence, any general administrative directions given by the Collector in the capacity of Executive Collector cannot be said to be an order of adjudication. A right of appeal is not a natural or an inherent right but only a statutory right. That right of appeal must be specifically given under a Statute and that should be exercised in the manner prescribed under the very Statute. Section 128 specifically provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said order lies to the Collector of Customs (Appeals). From a perusal of the said order which is reproduced in para 2 of Shri Brahma Deva's order I find that the matter has been referred to the Collector and the Collector has taken a decision regarding the non-availability of the project contract benefit to the goods in question. This is apparent from the following clause in the letter (Order) signed by the Collector :- "..............and the Collector has specifically directed that contract benefit is not available for the goods imported under cover of REP licence." It is, therefore, clear that the Assistant Collector is merely communicating the decision/order of the Collector of Customs. The order/decision that the importer is not ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llector was following a specific direction given by the Collector in the matter of eligibility for project import concession, as has been highlighted in the order proposed by learned Member (Technical). The learned consultant relying on case law urged that when two views are possible, the one in favour of the assessee should be adopted. On the other hand, Shri S.K. Roy learned Senior Departmental Representative more or less reiterated his submissions earlier made before the Bench and urged that the communication of Assistant Collector herein impugned does not have the attributes of an order of Collector as an adjudicating authority and also there has been no proceedings in the nature of adjudicating proceedings. He also produced the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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