9911796707
TMI Blog1983 (11) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... ituted. 3. As these appeals are heard only on the question of maintainability and the locus standi of the Collectors to prefer the appeals, suffice if we set out the facts of one of the appeals and accordingly we set out the facts of the appeal in Appeal No. 336/83. 4. The Assessee, M/s. Perfect Power Systems, New Delhi, had imported 8 consignments of portable generators and had presented 8 Bills of Entry for clearance of the consignments through their Clearing Agents, M/s. N.P. Jobanputra. The import licences, letters of authority and other relevant documents were produced before the Customs authorities. Shri K. Srinivasan, Collector of Customs, Bombay, in his order No. S/10-240/82-G, dated 9th June, 1982 held that the licences produced were not valid to cover the goods imported. In that view of the matter, he directed confiscation of the goods but, however, gave an option to the importers to redeem the goods on payment of fine in lieu of confiscation. The learned Collector refrained from imposing any penalty on the importers under section 112 of the Customs Act by giving the benefit of doubt and holding that the act of importation was not a deliberate one but was only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 and 131 as they stood immediately before the appointed day. It was urged by Shri Badshah that the provisions of the Act, as they stood prior to the appointed day did not provide for an appeal against the order of the Appellate Collector, or against the order of the Board. He urged that the order passed by the Board was final subject, however, to revision by the Central Government u/s 131. Shri Badshah contended that after the appointed day, the amended provisions did not enlarge the right of the Revenue to prefer an appeal against the order passed by the Board. Incidentally, Shri Badshah urged that in all these appeals, the orders passed by the Collectors in their capacity as adjudicating authorities have been set aside by the Board and that the adjudicating authority became functus officio immediately after the order was passed, and therefore, cannot be considered as a person aggrieved by the decision passed by the Board. 8. Shri P.R. Vakil, the learned Advocate for the Respondent in Appeal No. 16/83, supplemented the arguments advanced by Shri Badshah and contended that under the provisions that existed prior to the appointed day, the Central Board of Excise & Customs was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e revision against the order of the Board, he could always move the Central Government to revise the order of the Board and that in practice it is at the instance of the Collectors, the Central Government has been exercising suo motu revisional powers conferred on them under section 131 of the Act, as it stood before the appointed day. It was further urged by Shri Parekh that the present appeals are filed by the Collectors not as adjudicating authorities but in their capacity as executive Collectors to safeguard the interests of the Revenue. 11. As stated earlier, the present set of appeals has been filed by the Collectors of Customs claiming themselves to be aggrieved by the orders passed by the Central Board of Excise & Customs in favour of the assessees and against the Revenue. Since we are deciding the question of maintainability, we would like to split the same into two :- Firstly, the question whether an appeal lies; and secondly, the question of locus standi of the Collectors to prefer appeals. 12. The appeals in question were purported to have been filed under section 129A(1)(c) which reads :- "129A(1). Any person aggrieved by way of the following orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 128, or (b) any order passed under Section 130 otherwise than on the application of any aggrieved person, or (c) any order passed on the application of any aggrieved person under Section 130 where the order is of the nature referred to in either of the proviso to sub-section (1) of that Section, annul or modify such order. (2) (not relevant for the present purpose) (3) The Central Government may of its own motion annul or modify any order passed under Section 128 or Section 130. (4) No order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value shall be passed under this Section- (a) in any case in which an order passed under Section 128 or Section 130 has enhanced any penalty or fine in lieu of confiscation or has confiscated goods of greater value; and (b) in any other case, unless the person affected by the proposed order has been given notice to show cause against it, within one year from the date of the order sought to be annulled or modified. (5) Where the Central Government is of opinion that any duty of customs has not been levied or has been short levied, no order levying or enhancing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector of Customs. According to Shri Parekh such a power has not been conferred on the Central Govt. because the revisional powers which the Central Government was exercising before the appointed day got enlarged and a right of appeal was conferred on `the Revenue' under section 129A(1). Shri Badshah, the learned Advocate for the respondent, on the other hand contended that after the appointed day, an Appellate Tribunal consisting of Judicial and Technical Members came to be constituted. That being an independent body, the necessity of providing the revisional power to the Government of India was considered unnecessary and therefore the Parliament did not deliberately vest any power on the Central Government to pass any order after the appointed day. He reiterated his contention that Section 129A(1) did not confer any power on the Revenue to prefer an appeal against the orders specified in that Section. 15. Let us now proceed to examine whether the expression "any person aggrieved" takes within its ambit "the Revenue". "Any person aggrieved" is not a new phraseology used for the fist time after the amendment. This phraseology has been in existence even before the amendment. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior to the appointed day and the specific provision for appeal conferred on the Collector of Customs under sub-section (2) of Section 129A and the power of examination of records of the subordinate authorities by the Board and the Collector under Section 129D and the power of making reference to the High Court by the Collector under Section 130, negatives the contentions urged by Shri Parekh. If the expression `any person aggrieved' could take within its ambit `the Revenue' or the Collector as contended by Shri Parekh, there was no need for the Parliament to confer a specific power of appeal on the Collector of Customs against the order passed by the Appellate Collector of Customs under section 128 as it stood before the appointed day or the Collector (Appeals) under section 128 because the Collector of Customs as well could have filed appeal under sub-section (1) itself. Under that sub-section, appeal is provided against the order passed by the Collector (Appeals) under section 128. If the expression `person aggrieved' takes within its ambit the Collector, then sub-section (2) of Section 129A becomes redundant. Now it is a settled law that the Parliament does not make unnecessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) the Central Board of Excise & Customs or the Appellate Collector of Customs under Section 128 of the Act as it stood immediately before that day; or (b) the Central Board of Excise & Customs or the Collector of Customs under Section 130 of the Act as it stood immediately before that day may be filed, shall, without prejudice to the provisions of sub-section (5) of Section 129A of the Act, be six months from the date on which the said order is communicated to the Collector of Customs, or, as the case may be, the other party preferring the appeal." 17. Shri Parekh contended that by this order, the Collector of Customs could prefer an appeal against the order passed by the Board u/s 128 as it stood before the appointed day within 6 months from the date of its communication, and therefore, the expression "aggrieved person" appearing in sub-section 1) of Section 129A would take within its ambit, the Collector of Customs also. We put a question to Shri Parekh whether the Collectors of Customs are entitled for a communication of the order passed by the Board under section 128 of the Act as it stood immediately before the appointed day. Shri Parekh frankly conceded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a power cannot be conferred by subordinate legislation, viz. by Rules. Now, there has been no substantial change in the law in the matter of appeal after the appointed day. The only power conferred on `the Revenue' to prefer an appeal is the power conferred on the Collector of Customs under sub-section (2) of Section 129A to challenge the orders passed by the Appellate Collector and Collector (Appeals). If the intention of the Parliament was that there should be right of appeal to `the Revenue' against the order passed by the Central Board of Excise & Customs, a specific provision would have been enacted similar to the provisions of sub-section (2) conferring a right of appeal either on the Collector or Central Government. The same has not been done. We have pointed out even under the Act, as it stood before the appointed day, the Board was constituted as a final authority in the matter of appeal. No doubt, the Central Government had authority to revise the order of the Board. If the Parliament in its wisdom had taken away the power of the Central Government to scrutinise the order of the Central Board of Excise and Customs, that remedy cannot now be provided by extending the sco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive and quasi-judicial functions. Since the power of adjudication is conferred on the executive officers, the necessity to provide an appeal at the instance of `the Revenue' was probably not considered necessary. But then prior to the appointed day, revisional power has been conferred on superior authorities. Even after the appointed day, as pointed out earlier, the Board as well as the Collector could examine the proceedings of their subordinates. Having regard to the Scheme of the Act, both prior to and after the appointed day, we are of the considered view that the expression "aggrieved person" appearing in sub-section (1) of Section 129A does not take within its ambit `the Revenue'. Therefore we hold that the present appeals are not maintainable. 20. Now coming to the second question, viz., locus standi of the Collectors to prefer appeals against the orders of the Board, Shri Parekh, the learned Advocate for the Appellants, contended that the Collectors have filed appeals in their capacity as Executive Collector and in the interest of revenue. We are unable to appreciate this contention. Even though Shri Parekh contended that the Collectors acted as executive Collectors, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Government of India shall be expressed to be taken in the name of the President." Clause (3) reads : "The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business." Thus it is clear that the business of Government of India shall have to be performed in the manner specified in the Rules of Business. The conduct of the business of Government of India is allocated to various Ministers. In other words, it is distributed among the several Ministers. The Rules of Business enable a Minister to exercise the power allocated to him. Rules of Business may also authorise a particular official of the Ministry, (say, Secretary, Joint Secretary) to take any particular decision or discharge any particular function. When any such official does any act so authorised, he does so not as a delegate of the Ministers, but on behalf of the Government of India. In short, the act of the Minister or the official who is authorised by the Rules of Business is the act of the President or of the Government of India in whom the function or power is vested by the Constitution or by any statute. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly sound. Even otherwise, the Larger Bench which has decided the present case, was illegal inasmuch as its constitution has been in violation of the provisions of Section 129C(2) and (3) where under a Bench of the Tribunal has to be of two members only because of the use of word "Shall" in Section 129C(2), except in cases where the Appeal relates to a question concerning to valuation or rate of duty. Since a larger Bench was constituted to hear an appeal of the Western Regional Bench, therefore, no question of valuation or rate of duty can be said to have been involved. Further, in view of the Divisional Bench decision of the Allahabad High Court 1969 (71) I.T.R. 279 the entire proceedings before this larger Bench are abinitio void and illegal because of the illegality in the constitution of the Bench which deprives it of any jurisdiction or authority of law. The provisions of the Excise and Customs Act do not authorise the President of the Appellate Tribunal to constitute Larger Benches or Full Benches merely because important questions are to be decided. No inherent powers can be presumed in view of the mandatory provisions of Section 129C(2). Since the subject requires a detai ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
