9911796707
TMI Blog1993 (10) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... der TI 33C CET as domestic electrical appliances. The applicants deposited the amount of duty under protest, and subsequently applied for refund of excess duty charged which claim was rejected by the Assistant Collector of Customs, Refund Section. On appeal, the Collector of Customs (Appeals), Bombay reversed the order of the Assistant Collector and classified the goods under Heading- 84.40(1) for the purpose of basic customs duty. Regarding countervailing duty, the appellate authority held that only a part of the goods would be classified under TI 33C while the other part was classifiable under TI 68. On 29-9-1982 a show cause notice under Section 131(3) of the Customs Act, 1962 was issued by the Central Government proposing to set aside the order-in-appeal dated 18-4-1981 passed by the lower appellate authority. Subsequent to the filing of the reply to the above notice, the CEGAT was constituted and by virtue of Section 131B, the revision proceedings before the Central Government stood transferred to this Tribunal and numbered as the above appeal. 2.1 The appeal came up for hearing before the Tribunal and at one stage the Bench directed vide its order dated 15-6-1990 that copie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... waiver of filing of the documents and decision of the appeal on available records. 3. Shri A.K. Agarwal, learned Counsel appearing on behalf of M/s. Ruby Advertisers submits that the non-availability of all records is fatal to the right of the Department to issue notice for review under Section 131(3). He further submits that the scope of revision proceedings is different from those of appeal proceedings, and since on transfer to the Tribunal the revisionary proceedings are deemed to be proceedings in appeal, the scope of the proceedings before the Tribunal is enlarged and the Tribunal will have to look into the order-in-original passed by the Assistant Collector as well as the order of the lower appellate authority for proper disposal of the appeal before it. He submits that the Rules relating to appeals should be followed after a revision application is transferred to the Tribunal and treated as an appeal and in this case as the requirement under Rule 9 of the CEGAT (Procedure) Rules has not been complied with by the Revenue the appeals merit rejection. He contends that the requirement of Rule 9 is mandatory and the Tribunal has no power to waive the requirement of compliance t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment and no prejudice will be caused to the respondents if the order-in-original is not on record as the matters can be decided on the basis of available papers. 5. In rejoinder, Shri L.P. Asthana submits that the CEGAT (Procedure) Rules apply to transfer proceedings and procedural requirements are retrospective in operation. The filing of the order-in-original is absolutely necessary as the show cause notice is not severable in nature. 6. We have carefully considered the submissions of both sides, perused the records and gone through the host of citations relied upon. The undisputed position that emerges is that the copy of the order-in-original is not available in spite of best efforts of the Department to place it before us. The affidavit filed by Shri R. Mukhopadhyay, CC (Judicial) to this effect is not disputed by the importers, who also do not have a copy thereof. The affidavit is reproduced below: Affidavit to waive the direction on filing of records I, R. Mukhopadhyay, Collector of Customs (Judicial), Custom House, 33, Rajaji Salai, Madras 600 001, do hereby solemnly affirm and sincerely state as follows: 1. I am the Collector of Customs (Judicial), Custom Hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal as an appeal. The show cause notice F. No. 380/88/B2-Cus. II, dated 29th September, 1982 was issued by the Central Government in this case proposing review of order-in-appeal No. S/49-645/81R dated 18-4-1991 passed by the Appellate Collector of Customs, Bombay on the appeal of M/s. Ruby Advertisers against Order No. S/6-B-3258/80R, dated 17-12-1980 passed by the Assistant Collector of Customs (Review), Custom House, Bombay. When the case papers might have been transferred from the Revision application unit of the Central Government to the Registry of the Tribunal, it appears that the case files which might have been sent by the Collector to the Central Government got delinked. As appears from the letter F. No. CD/SB/720/87/267 dated 9th February 1988 of Mr. J. Gopinath, the then SDR only reviewed the show cause notice and the other correspondence between the Collector of Customs arid the Ministry were available in the Registry s file and with this letter he forwarded to the Custom House, copy of the review show cause notice and the correspondence. The case files containing the order-in-original and other documents were either not received in the Custom House from the Minist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government has become an appeal before the Tribunal for all purposes and the proceedings still retain the character of a revision application, (emphasis supplied). In the case of Khira Steel Works v. CCE, Ahmedabad - 1988 (38) E.L.T. 330, the Collector (Appeals) had passed the impugned order without even noticing that the appeal had been filed within the period of limitation and he had rejected the appeal as time-barred. The appeal had been filed in April, 1987 but not in proper form and without court fee and, therefore, in October 1987, the defects were rectified arid the appeal was filed once again. The Tribunal held that the defects were procedural in nature and should not have stood in the way of treating the communication of the April 1987 as an appeal and procedural error or irregularity should not hamper substantial justice (emphasis supplied). 7.1 The case law cited by the learned Counsel for the importers is not strictly applicable to the facts of the present appeals. In the, case of Hari Shankar and Others v. Rap Girdhari Lal Chowdhury - AIR 1963 SC 698, the issue was whether the High Court in the exercise of its revisional power in a rent control matter is entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the word may occurring in Section 11 of the Probation of Offenders Act, 1958 arose for determination. Sub-section (3) of Section 11 provided that in a case where any person under 21 years of the age is found guilty of having committed an offence and the Court by which he is found guilty declined to deal with him under Section 3 or Section 4 of the Act and passes any sentence of imprisonment with or without fine from which no appeal lies or is preferred, then the Appellate Court may either of its own motion or on an application made by the convicted person or the Probation Officer, call for and examine the record of the case and pass such order as deemed fit. The Hon ble Supreme Court observed that though the word may occurring in Section 11(3) might connote merely an enabling or permissive power in the sense of the usual phrase it shall be lawful , it is also capable of being construed as referring to a compellable duty particularly when it refers to a power conferred on a Court or judicial authority. The interpretation of Rule 4(2) of the U.P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 was the subject matter in the case of State of Uttar Pradesh v. Jogen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal was held to be not maintainable for non-compliance with the statutory requirement under Rule 4 of the Customs (Appeals) Rules, 1982 regarding filing of copies of order of adjudicating authority and the order of the lower appellate authority. It is pertinent to note at this stage that in the appeals before us, the question is not directly whether the Tribunal is empowered to dispense with the filing of the copy of the order of the adjudicating authority, but whether, in the absence of such a copy for reasons beyond the control of the Department, the Tribunal has no alternative but to reject the appeals as not maintainable. Hence Reliance was placed by the importers on the order of the Tribunal in the case of Jyotsna Rani Ghosh v. Collector of Customs and Central Excise, Shillong - 1984 (18) E.L.T. 594. However, we note that this order is not a final order in appeal but an order directing the appellants to file the requisite sets of documents such as (a) order of the lower appellate authority (b) revisional order, etc. and in that case no plea was raised by the appellant whose revision petition was transferred to the Tribunal under Section 131B(2) that the documents were ..... 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