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TMI Blog1984 (1) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... n Tariff Act, 1934 as prescribed under Section 14 of the Customs Act, 1962 and to auxiliary duty at 5% under Customs Tariff Item No. 35 on a provisional basis. On 24th October 1978, the Assistant Collector of Customs, Visakhapatnam, finalised the assessment of six shipments of rock-phosphate including in particular, that in respect of Bill Entry No. 008/2-9-1975 relating to rock-phosphate shipment received per S.S. `Irish Larch which was provisionally assessed during 1975. The Assistant Collector of Customs, Visakhapatnam, while finalising the above Bill of Entry in respect of the above shipment, levied auxiliary duty at 15% and countervailing duty at 15% as against 5% auxiliary duty and 15% countervailing duty levied under the provisional assessment on the basis that the item `Rock phosphate would fall under Item No. 87 and not under Item No. 35 of the Customs Tariff as initially determined by him and accordingly a demand notice No. S8(a)1148/75-76, dated 9-10-1978 under Section 18(2) of the Customs Act, 1962 was issued against the appellants to pay an additional duty in the amount of ₹ 13,96,233.90. Against the demand raised by the Assistant Collector of Customs, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the goods relating to Bill of Entry No. 008/2-9-1975 because the Appellate Collector of Customs central Excise, Hyderabad did not pass any order of his own on this point. He had only observed that the auxiliary duty should be charged at the rate of 15% as ordered by the Collector of Customs, Madras. The remedy was available to the appellants against the order of the Collector of Customs, Madras, by filing a Revision petition to Govt. of India. No appeal or revision lies against this order passed by the Appellate Collector, Hyderabad on this issue which has not been decided by him. It cannot be said to be an order against which any revision or appeal lies before this Tribunal. What the Appellate Collector, Hyderabad has observed is that the auxiliary duty should be charged at the said rate of 15% as per the order of the Collector of Customs, Madras. This observation cannot be said to be an order passed by the Appellate Collector, Hyderabad and therefore no appeal or revision lies against it. 8. On merits, the learned departmental representative argued that the order of the Collector has attained finality and cannot be questioned under Section 129(A) of the Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case on preliminary point disposing of matter, is appealable. In a case under the Income-tax Act reported in 46-ITR-Page 208, the assessee did not pay the tax which was a condition precedent to the maintainability of the appeal. The A.A.C. accordingly passed an order holding that he had no jurisdiction to hear the appeal. It was held by the High Court that this constituted an order against which an appeal lay to the Appellate Tribunal. In another case under the Income-Tax Act reported in 68-ITR-P-437, the A.A.C. passed an order refusing to exercise the jurisdiction and to entertain an appeal on the ground that the appeal was not maintainable. That order was held to be appealable before the Appellate Tribunal. 12. In the present case before us, the Appellate Collector has specifically ordered that in view of the order of the Collector of Customs, Madras to the effect that auxiliary duty should be charged at the rate of 15% only, the auxiliary duty should be charged at the said rate of 15%. This amounts to an order passed by the Appellate Collector and is appealable before the Appellate Tribunal. This is a clear cut order of the Appellate Collector, Hyderabad, and even if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt dated 14-12-1976 in special Civil Applications No. 668 and 1117 of 1974 in which the High Court of Gujarat held that rock-phosphate was mainly used for manurial purposes irrespective of the form in which it was imported and that therefore the rate of auxiliary duty leviable on it was 5% corresponding to Item 35, Indian Customs Tariff. 17. The facts in that case were similar to facts of this case before us. No particular form is prescribed in the tariff entry for the import of rock-phosphate. Rock-phosphate even if it is imported in lumpy form, it will not cease to be rock-phosphate used in the production of fertilisers. Had it been the intention of the legislature that rock-phosphate should only be imported in powder form and not in any other form, the legislature would have indicated so in the tariff entry. It is therefore, manifest that irrespective of the fact whether particular mineral is in powder form or in pabble (lumpy) form if that particular mineral phosphate is used for manurial purposes, it would not fall under entry No. 87 of the Customs Tariff which deals with all other articles not otherwise specified. If entry No. 87 is not attracted, then auxiliary duty i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s went to the two authorities, when normal remedy was only an Appellate Collector, but they are not important. All that we need to bear in mind was that the two authorities acted only when approached by the appellants, M/s. Coromandel Fertiliser, and not on their own volition. It also needs to be remembered that the appellants went to the Collector first, before they approached the Appellate Collector a month later. It is believed that a suppliant can appeal before any power who can redress. That is a position that no one need question. But that is not to say that the suppliant can approach first one power, and then another, perhaps in the expectation that if the one does not produce the desired remedy, the other might. Coromandel Fertilisers gained a good deal from the Collector s order but he resisted their demand with regard to Irish Larch. A month later, the Appellate Collector gave an order which, likewise, benefited Coromandel Fertilisers not a little, but he gave nothing on Irish Larch because he said that same matter had been decided by the Collector. He correctly and properly said that the Collector having decided a matter, the Appellate Collector was no longer able to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r by a power of equal rank. We do not have such a situation here, but this illustrates what could be the outcome if we hold that the Appellate Collector s order of 12-4-1979 is a valid order in regard to the Irish Larch consignment. This order was made a month after the Collector passed his order and, therefore, was a non-order as far as Irish Larch bill of entry was concerned. To be fair to the Appellate Collector, he himself recognised the difficulty and made elaborate comments as to leave no one in any doubt about what he was doing. He said clearly that his was not an order as the Collector had already decided the matter and that an appeal would arise only against the Collector s order and not to himself but to the Board/Government of India. While the party is perhaps free to pursue any remedy, I am not able to accept that it can pursue two or three. A party must have its avenue for redress but it has no case to have more than one such avenue. These are important and weighty business and the energy of the State and its avenues must not be frittered away by opening as many doors as possible for a person who desires of enter to seek succour from injustice. One remedy at a ti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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