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TMI Blog1992 (7) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor. Shri N. Singh, Consultant referred us to several documents to show that the officer concerned, namely, Shri B.K. Gupta, was posted as Additional Collector at the relevant time and he could have only exercised powers of the Additional Collector. So presuming that he has signed as Deputy Collector, even then it should be treated to have been signed by him in his capacity as Additional Collector and so this Tribunal is an appropriate forum to hear these appeals. In particular, he drew our attention to CBEC Digest - April 1990 - containing appointments, transfers, etc. of Group A Officers. At page 101 of Part B of the Digest is found Office Order No. 33/90 which reads as follows : Shri B.K. Gupta, Deputy Director, Directorate General of Inspection, Delhi is hereby transferred and posted as Additional Collector of Customs, I.G.I. Airport, Delhi vice Shri N.K.P. Sinha, promoted as Collector of Customs and Central Excise. MF (DR) F. No. A-22012/DC/13/90-Ad. II dated 2-4-1990". The learned Consultant referred to the provisions of Section 162 of the Customs Act to stress the point that Collector has no powers to delegate any powers of Deputy Collector to the Additional Collecto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Singh is concerned it is not applicable to the facts of the present case because therein the adjudicating authority had himself admitted to have signed the order in his capacity as Additional Collector and finding of the Tribunal is based upon that admitted fact. Here the very fact is in dispute and it is strongly contended by the Department (and accepted by the appellants) that the impugned order is signed by Shri B.K. Gupta as Deputy Collector and not Additional Collector. So the citation is not helpful to the appellants in the present case. 6. In the light of the above discussion we hold that this Tribunal has no jurisdiction to hear these appeals. The papers are, therefore, returned to the appellants for presentation before the appropriate forum. 7. [Order per: S.K. Bhatnagar, Vice President]. - With due respects to Hon ble Member (Judicial), my opinion and orders on the matter are as follows : 8. There is no doubt or dispute that the impugned orders have been signed by the adjudicating officer Shri B.K. Gupta and his designation has been shown as Deputy Collector. 9. It is, however, the contention of the appellant that Shri B.K. Gupta was actually Additional Coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been laid down that Additional Collector Airport being basically a Deputy Collector of Customs shall adjudicate baggage cases as Deputy Collector so that passengers can go in appeal before Collector (Appeals) since such cases have been taken out from the jurisdiction of CEGAT vide Finance Bill for 1984. A copy of said page 48 of the Adjudication Manual is enclosed for ready reference. With regards, Yours sincerely, Sd/-B.K. Gupta." This letter shows two things (i) that Shri B.K. Gupta has sent this D.O. as Additional Collector and (ii) it refers to adjudication of baggage cases by Additional Collector of Customs. It also refers to Adjudication Manual and says that Additional Collector Airport being basically a Deputy Collector of Customs shall adjudicate baggage cases as Deputy Collector. 12. Our attention has also been drawn by the S.D.R. in this regard to Sections 5 and 152 of Customs Act, 1962. In my opinion these sections do not advance the cause of the Department and could not be relied upon in support of the executive instructions quoted in the Manual. First and foremost, paragraph 73C of the Manual does not refer to any notification or order issued under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce an officer has been posted and notified as Additional Collector he has to function in that capacity and is not at liberty to change or modify his designation or function in a different capacity. Further, as an abundant caution, the Bench had itself enquired as to whether Shri B.K. Gupta was holding double charge. The Department, however, could not produce any notification or office order in this respect, and Learned DR has merely drawn our attention again to the communication of Shri B.K. Gupta, Additional Collector and Para 73C ofAdjudication Manual cited by him. The Learned Counsel has, on the other hand, referred to the case of Syed Abdul Hameed v. Collector of Customs 1989 (44) E.L.T. 74 in support of his contention that at the relevant period Shri B.K. Gupta was Additional Collector as such he could have passed the order only in his capacity as Additional Collector and not as Deputy Collector. The learned Counsel has also drawn our attention to an R.O.M. application filed by him in Appeal No. C/1798/90-NRB which was accepted by the Tribunal and also stated that Courts are required to take judicial notice of Gazette Notification and cited the Madhya Pradesh High Court j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if they were officers of the same grade or level, that would not change the legal position, namely, that whereas an Additional Collector of Customs is Collector of Customs for the purpose of the Customs Act, 1962 (and, therefore, for adjudication), the Deputy Collector is not as per section 2(8) of the Customs Act, 1962. In the circumstances, while it was open to the Government/Board to post Deputy Collectors or send the cases for adjudication to Deputy Collectors if this was considered administratively desirable but it was not proper to ask the Additional Collectors functioning as such to adjudicate the cases as Deputy Collector . In the above circumstances, it can only be held that the adjudication has actually been done by Shri B.K. Gupta in his capacity as Additional Collector of Customs (and the designation below his signatures has been incorrectly shown as Deputy Collector). The Tribunal s order in the case of S.A Hameed (supra) also becomes relevant in this context and it is required to be followed. Furthermore, since in terms of Section 2(8) Collector includes Additional Collector, therefore in terms of Section 129A of the Customs Act, 1962 an appeal against this ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Customs, New Delhi. If the appellants so choose, they may raise the question of jurisdiction before the said Collector of Customs (Appeals), New Delhi and get it decided by the said authority. 15.1 Ld. Vice President, on the other hand, has held that there is no dispute that Shri B.K. Gupta was posted as Additional Collector of Customs, IGI Airport, New Delhi at the time of the passing of the impugned order. Therefore, it is an error apparent on record committed by the adjudicating authority namely, Shri B.K. Gupta by showing in the impugned order as having been passed by the Dy. Collector of Customs. He should have shown that the impugned order was passed by the Additional Collector of Customs since he was functioning as Additional Collector of Customs. Accordingly, the Ld. Vice President has held that the appeals would lie to the Tribunal and therefore, the appeals are maintainable. 16. Shri N. Singh, Ld. consultant for the appellants has urged that this issue is no longer res integra inasmuch as the Tribunal has already decided in exactly identical circumstances in the case of Syed Abdul Hameed v. Collector of Customs [1989 (44) E.L.T. 74 (Tri.)] that in such a case the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal in Syed Abdul Hameed s is distinguishable on facts inasmuch as that decision is based purely on a Idler by Shri K.S. Sivaraman who Was the adjudicating authority in that case where it was admitted that he passed the order as Addl. Collector of Customs. This letter completely settled the controversy in favour of the appellant namely Syed Abdul Hameed. The majority view in Syed Abdul Hameed s case did not examine and overrule the view expressed by the Technical Member who held the view that the same person could be said to have held two posts in two different capacities namely as Addl. Collector and as Dy. Collector of Customs in view of the substantive appointment of all Addl. Collectors of Customs as Dy. Collectors of Customs. He, therefore, submits that the majority view in Syed Abdul Hameed s case is based on the peculiar facts and on the admission of the adjudicating authority in that case. Such an admission is not available in the instant case. Attention in this connection has been drawn to letter dtd. 7-8-1990 of Shri B.K. Gupta addressed to the S.D.R. which has already been set out in the learned Vice President s order. 17.1 He has also drawn attention to CBEC s lette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al against that order will lie with the concerned Collector (Appeals) and the second appeal will lie with the Revisionary Authority. (5) Please implement this as soon as the Finance Bill, 1984 receives President s assent and meanwhile confirm that administrative arrangements have been made." He submits that Section 122 of the Customs Act gives unlimited powers of adjudication to the Dy. Collectors. However, the Board in exercise of its powers under Section 5 of the Customs Act has put conditions and limitations on the exercise of such powers of the Dy. Collector by the said letter since Addl. Collector is basically a Dy. Collector. 17.2 In the aforesaid submissions, he submits that the appeal is not maintainable before the Tribunal and it should be rejected on the question of jurisdiction itself. 18. I have carefully considered the pleas advanced by both sides. I observe that the facts of this case are identical to the facts of the case in Syed Abdul Hameed mentioned supra. The question of jurisdiction therefore, stands settled by the decision of the Tribunal in that case. Even though in the said case of Syed Abdul Hameed, Shri K.S. Sivaraman, the adjudicating authority had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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