Anilbhai Hasmukhbhai Soni vs Union of India (UOI)

D.A. Mehta, J.—When the matter is called out, learned advocate for the petitioner informed that the petitioner No. 1 has expired. Accordingly, the Registry is directed to delete the name of petitioner No. 1 and hereinafter show only petitioner No. 2 as the petitioner. It is an accepted fact that original petitioner No. 2 is the son of petitioner No. 1 and hence, the Court has proceeded to hear the petition finally.

This petition has been preferred praying for following reliefs:

(A) Your Lordships may be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ, order or direction, quashing and setting aside the order of the CEGAT dated 21-7-1989 (Annexure ''F'' hereto) and Order-in-Original No. 61/ADDL. COLLR./88 dated 29-9-1988 passed by the Additional Collector of Customs (Annexure ''E'' hereto);

(B) Your Lordships may be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction, directing the respondents, their servants and agents to return the gold weighing 218.100 grams recovered from the premises of the petitioners on 16-2-1985.

Though the petitioners have sought various directions in relation to the Order in Original and its legality as well as return of the gold recovered from the premises of the petitioners on 16th February 1985, for the reasons that follow hereinafter, the Court does not intend to enter into any discussion on merits of the controversy.

Admittedly, the Order-in-Original came to be made on 29th September 1998 (sic) (1988) by Additional Collector of Customs (Pre) under the provisions of the Gold Control Act, 1968 (the Act), against which an appeal was preferred before the Central Excise & Gold Control Appellate Tribunal (as it then was). The Tribunal vide its order dated 21st July 1989 (Annexure ''F'') came to the conclusion that an order made by Additional Collector of Customs was amenable to appeal only before Commissioner (Appeals) and not before the Tribunal. The Tribunal, therefore, directed the Registry of the Tribunal to return the papers of the appeal forthwith. According to the Tribunal, it had no jurisdiction to hear the appeal. It is this order which is under challenge.

On behalf of the petitioners, it was submitted that under the provisions of the Customs Act, 1962 (the Customs Act), the definition of "Collector of Customs" includes an Additional Collector of Customs and therefore, the Tribunal had committed an error in not entertaining the appeal on merits. It was further submitted that even in the printed form preceding the Order-in-Original in paragraph No. 2, it was specifically stated that, an appeal against the said order would lie before Customs, Excise & Gold Control Appellate Tribunal in terms of Section 129A of the Customs Act, 1962. That the appeal should be filed within a period of three months from the date of communication of the said order. The said paragraph also specifies where the appeal lies considering the issue involved as to whether the same pertains to valuation or any other issue. Learned advocate, therefore, submitted that either this Court may restore the appeal to the file of the Tribunal for a fresh adjudication on merits or decide the controversy on merits.

Though served, none appears on behalf of the respondent authorities. Mr. P. M. Dave, learned advocate appears for respondent Nos. 4 and 5. He has been heard.

As can be seen from the impugned order of the Tribunal, no independent reasons have been assigned by the Tribunal except placing reliance on its own decision in the case of 1986 (26) ELT 660 According to the Tribunal, as two distinct orders have been made, one under the Act and another under the Customs Act by the Additional Collector, the action of the Additional Collector is in exercise of powers as an adjudicating authority under the provisions of the Act and hence, the appeal would lie before Collector (Appeals) and not before the Tribunal.

Section 80 of the Act, as is relevant for the present, reads as under:

Appeals to Collector (Appeals) : (1) Any person aggrieved by any decision or order passed under this Act by a gold control officer lower in rank than a Collector of Central Excise or of Customs may appeal to the Collector (Appeals) within three months from the date of the communication to him of such decision or order.

Similarly, the relevant part of Section 81 of the Act which deals with appeals to the Appellate Tribunal reads as under:

Appeals to the Appellate Tribunal. - (1) 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 Collector of Central Excise or of Customs as an adjudicating authority;

A plain reading of Section 80 of the Act makes it clear that any person aggrieved by any decision or order made under the Act by a Gold Control Officer lower in rank than a Collector of Central Excise or of Customs, may appeal to the Collector (Appeals) within the prescribed period of limitation. As against that, Section 81 of the Act permits an aggrieved person to prefer appeal to the Appellate Tribunal against a decision or order made by Collector of Central Excise or of Customs as an adjudicating authority. Once the Tribunal has come to the conclusion that the order was made by the Additional Collector of Customs as an adjudicating authority, the Tribunal could not have resorted to provisions of Section 80 of the Act to non-suit the appellant before it by holding that the Tribunal has no jurisdiction to hear the appeal. Even otherwise, as can be seen from the definition of "adjudicating authority" as appearing in Section 2(a) of the Act, the said term means an authority competent to pass any order or decision under this Act but excludes the Administrator, Collector (Appeals) and the Appellate Tribunal. Therefore, the term "adjudicating authority" would take within its sweep even an Additional Collector of Customs, the said authority not having been excluded by definition of the term "adjudicating authority". It is nobody''s case that the said authority was not competent to pass an order under the Act.

There is one more aspect of the matter. "Collector of Customs" has not been defined under the Act and the definition appears only in the Customs Act, Section 2(8) of the said Act. The term "Collector of Customs" has been defined to include an Additional Collector of Customs. In the circumstances, if the provisions of the Act have not defined "Collector of Customs", one can refer to the definition under the Customs Act in light of the fact that most of the powers exercised under the Act are by authorities appointed under the Customs Act.

In the aforesaid fact situation, instead of relegating the petitioners to Commissioner (Appeals), the Tribunal ought to have heard and decided the appeal on merits. Accordingly, the appeals filed by the petitioners stand restored to the Tribunal, which has since been rechristened as the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench. Considering the point of time, the period to which the proceedings relate, it is hoped that the appeal is heard and decided as expeditiously as possible by the Tribunal. The petition is allowed accordingly. Rule made absolute with no order as to costs.