9911796707
TMI Blog1983 (7) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... grat, Advocate, appeared for the appellants and Shri Krishan Kumar, Junior Departmental Representative, for the respondent. 2. In the notice of hearing, the attention of the appellants had been drawn to the fact that the Collector s order was in effect a composite order consisting of three Orders-in-Original, pertaining to three different consignments covered by separate Bills of Entry, and there should have been three appeals instead of one filed before the Tribunal (assuming appeals to like to the Tribunal). As regards this point, Shri Gagrat submitted that the West Regional Bench had in previous similar cases accepted a single appeal. However, on its being pointed out that the general practice of the Tribunal was to require as many separate appeals to be filed as were covered by the composite order of the authority below, Shri Gagrat undertook to file two supplementary appeals within a week. On this undertaking the matter was taken up for hearing. The appellants have subsequently, on 11-7-1983, filed two supplementary appeals with corresponding stay applications. These are allocated as under, as requested by the appellants :- Appeal File No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to dispose of the goods lying in the bonded warehouse. 5. It is with reference to the above order of the Collector that differences of opinion arose between the two Members of the Regional Bench. It was held by the learned Member (Technical) that though the Collector in his order dated 24-9-1982 had ordered recovery of duty in terms of Section 72(1) Customs Act, there was no order from the Collector in terms of sub-section (2) ibid. He observed that the Bench was not aware of any such order except through the oral submission of the Advocate. If the order in terms of sub-section (2) was that of a lower authority, the appeal against such decision or order would not lie to the Tribunal and it would be improper for the Tribunal to rush to a decision in that case. 6. The learned Judicial Member, on the other hand, observed that in terms of the Collector s order there had been already a direction that the demand notice issued in terms of Section 72, Customs Act be enforced. This appeal was directed against the Collector s order and it had been urged before the Bench that if the direction was to be enforced, pending a hearing in the appeal, the appeal itself would be rendered infru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months. (It was one of his arguments that in the case of the latter two consignments the Collector had wrongly held that the normally admissible period of warehousing was only one year, whereas it should have been three years, as they were non-consumable and not likely to deteriorate). In all the three cases under consideration, a period of over three years had already expired, and, therefore, the Collector now had no further powers of extension. However, the Board s unlimited power to extend the period, subject to the payment of interest as newly provided through the Finance Act, 1983, remained unaffected. Shri Gagrat also fairly admitted that the Tribunal could not exercise the powers of extension of the warehousing period specifically given to the Board in this regard. In effect, therefore, the Tribunal could not give any substantive relief in this case. He, however, stated hat it was still open to the appellants to seek a further extension of the warehousing period from the Board, which they proposed to do. All that he sought from the Tribunal was a stay of action by the Collector to sell the goods or take any other irrevocable action till such time as the appellants had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor and not against the order dated 24-9-1982 issued by the Collector, which was administrative . In conclusion, he stressed that all the directions of the Collector were executive or administrative and could not be considered as orders passed by him as an adjudicating authority. Therefore, according to Shri Krishan Kumar, an appeal in this matter could not be entertained by the Tribunal, nor could a stay be given. 14. Shri Krishan Kumar was asked whether he would like to make any submission on the argument of Shri Gagrat that the goods were not consumable or liable to deterioration and therefore the normal period of warehousing should have been three years. Shri Krishan Kumar replied that he did not have the original Custom House records and, therefore, could not make any submission on this point. He added that the appellants themselves had in the first instance executed a bond only for one year in two cases. 15. I have carefully considered the arguments advanced on both sides on the question whether an appeal lies to the Tribunal against the order dated 24-9-1982 of the Collector. It is quite obvious that the Collector himself regarded this as an order against which an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 82 and to treat that as the basic order against which an appeal would lie, the appropriate appellate authority being the Tribunal. 17. The Departmental Representative argued at considerable length on the basis of various dates. Among other things, he pointed out that the date of 24-9-1982 given in the Collector s order could not be correct, because the order itself refers to a letter dated 20-10-1982 of the appellants. It is no doubt strange that an order bearing the date 24-9-1982 should refer to a letter dated 20-10-1982. This clearly shows that some error has crept into the Collector s order. Equally clearly, the fact that such an error has crept into the order should not prejudice the appellants position. The error in the dates will not, therefore, alter the conclusion reached and recorded in the preceding paragraphs. 18. Granted that an appeal lies to the Tribunal, a further question is what the scope of that appeal would be. As pointed out in paragraph 9 above, it would not be possible for the Tribunal, acting as an appellate authority, to grant an extension which in terms of Section 61 can be granted only by the Board. However, the Tribunal, as an appellate authority, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs for an extension of the warehousing period in the exercise of the Board s powers under Section 61. In view however of the proposal by the Customs authorities to sell the goods in the meantime, he sought from the Tribunal an interim order staying any such action until the appellants could apply to the Board and get an interim direction from the Board. This seems to be a reasonable request. An interim stay has already been granted by the President vide his order dated 22-4-1983. It would be in the interests of justice if this is extended for a reasonable period to enable the appellants to apply to the Board, which may or may not accede to their request. I would consider that continuance of the stay order for a period of say two months from the date of communication to the appellants of the final order of the Tribunal would be reasonable. 21. Reference has been made to the order dated 5-5-1983 of the West Regional Bench which has been cited by the Departmental Representative, and in which a view was taken that a stay could not be granted in such a case. It has been observed therein that the goods were not under Customs control and therefore there were no grounds for the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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