9911796707
TMI Blog2008 (4) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... [Order per Justice S.N. Jha, President]. - This miscellaneous application purportedly under Rule 41 of the CESTAT (Procedure) Rules, 1982 has been filed seeking direction upon the Commissioner of Customs, Lucknow to comply with Final Order No. 698/2003-NB(A) dated 10-12-2003 in Appeal No. C/261/2003. The applicant had preferred said appeal against the order of the Commissioner rejecting his application for renewal of Customs House Agent's (CHA) licence. 2. Though not relevant for the purpose of this application, it may be mentioned that the applicant was allegedly involved in a case of over valuation of an export consignment containing PVS soles. It was alleged that he did not perform his duty as CHA with due diligence and in accordan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring for the appellant/applicant submitted that all orders passed by the Commissioner under the Customs Act are appealable under Section 129A(a) of the Customs Act. He submitted that Customs House Agent's Regulations under which the impugned order was passed, have been framed under Section 146(2) of the Customs Act and therefore, the order will be deemed to have been passed under the Act and would, therefore, fall within the ambit of clause (a) of Section 129A the Act. Alternatively, he submitted that a Bench of this Tribunal having not only entertained this appeal but also issued positive direction, it is not open to the Bench to go behind the order and hold that the appeal itself was not maintainable, and decline to implement the directio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for suspension or revocation. 7. At this stage it would be apt to notice the provisions of Section 129A of the Customs Act under which appeals are filed before the Tribunal, so far as relevant for the purpose of this case. It is well-known that appeal or revision etc., as the case may be, are creatures of statute and in the absence of specific provision, appeal etc. cannot be entertained against any order. Section 129A runs as under: "SECTION 129A - Appeals to the Appellate Tribunal.- Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order- (a) A decision or order passed by the Commissioner of Customs as an adjudicating authority; (b) An order passed by the Commissioner (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two sides. In other words, there must be a 'lis' between two parties which is to be decided by the prescribed authority. The Customs Act or the Rules framed thereunder provides for adjudication at different rungs of the hierarchy of officials depending on the revenue involved. Where the Commissioner is required to adjudicate a dispute, the decision or order passed while adjudicating upon the dispute would come within the ambit of clause (a) of Section 129A. In other words, where order is passed by the Commissioner while adjudicating a dispute, it would qualify to be an appellable order under Section 129A(a) of the Act. An order granting/ refusing licence or allowing/rejecting the renewal application, or the like, cannot be said to be an or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is specific provision for appeal before the Tribunal against order of suspension or revocation of licence, under Regulation 23(8) which shows that wherever the framers of Regulations wanted that there should be a right of regular appeal before the Tribunal with respect to the job conditions of CHAs, such remedy was provided. It may be observed here that any order revoking or suspending the licence is likely to visit the person with evil consequence; it is also likely to cast some stigma on him, and therefore, the framer of the Regulations deemed it proper to make provision for regular appeal against such an order. However, as regards rejection of licence, including rejection of renewal application, no person can claim any vested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, it is open to the applicant to seek appropriate order in the said appeal. However, we do not propose to reject the application on that ground nor do we propose to do soon the ground that the Tribunal has become functus officio after disposal of the appeal. The application is said to have been filed under Rule 41 of the CESTAT (Procedure) Rules, 1982. Rule 41 provides that the Tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice. The jurisdiction conferred under Rule 41 is undoubtedly very wide. However, if we were to exercise such jurisdiction it may amount to continuance of mistake. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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