Commissioner of Customs vs M/s. G. Exporters

Dilip B. Bhosale, J.—Heard Mr. Venkata Reddy, learned counsel for the appellant and Mr. N. Anand, Amicus curie. This Customs Appeal, filed by the appellant-Commissioner of Customs, is directed against the order dated 30.11.2004, passed by the Customs, Excise & Service. Tax Appellate Tribunal, South Zonal Bench at Bangalore (for short ''the CESTAT''), in an appeal bearing Appeal No. C-146/2004, whereby the CESTAT set aside the order dated 27.02.2004 passed by the Commissioner of Customs (Appeals) in Appeal No. 29/2004 solely on the ground that the Assistant Commissioner who had filed the appeal (Appeal No. 29/2004) had no authority in law to file it. In other words, the question that was considered by the Tribunal was whether authorization to the Assistant Commissioner in terms of Section 129D(2) of the Customs Act, 1962 (for short ''the Act'') to file an appeal against the Order-in-Original passed by the Additional Commissioner is legally sustainable? Since a short question is raised for our consideration against the short order passed by the Tribunal, it would be advantageous to reproduce the said order:

This appeal arises from OIA No. 29/2004 dated 27.02.2004 by which the Commissioner (Appeals) has allowed the departmental appeal filed before him by the Assistant Commissioner of Customs and remanded the matter for de novo consideration. The short question raised by the appellant is that the authorization in terms of section 129D(2) has to be given to such authority, who passed the Order-in-Original, by the Commissioner of customs to file an appeal before the Commissioner (Appeals). The Order-in-Original was passed by the Additional Commissioner and therefore, the authorization given by the Commissioner of Customs to the Assistant Commissioner to file an appeal before the Commissioner (Appeals) is not in terms of section 129D(2). It is also stated that this aspect has been gone into by the Apex Court in the case of Collector of Central Excise, Madras Vs. M.M. Rubber and Co., Tamil Nadu, ; and by the Tribunal in the cases of (a) 1999 (114) ELT 1003 and (b) 1999 (108) ELT 498 .

Heard both sides in the matter.

On a careful consideration, we are satisfied that in terms of the provisions of Section 129D(2), the authority who passed the order should be directed to file the appeal before the Commissioner (Appeals). While in the present case, the Commissioner of Customs has authorised the Assistant Commissioner to file the appeal who was not the authority who passed the Order in Original. In view of the judgment cited supra, the order passed by the Commissioner (Appeals) is not legal and proper and hence, the same is set aside and the appeal is allowed.

Learned counsel appearing for the appellant initially submitted that Sub-section(2) of Section 129D of the Act provides for authorization to any officer of Customs subordinate to him and since the Assistant Commissioner is an officer subordinate to the Commissioner he was justified in directing him to file appeal. Mr. N. Anand, Amicus Curie, invited our attention to the Act 29 of 2006 by which the expression "such authority" in Section 129D(2) of the Act was substituted with the expression "such authority or any officer of customs subordinate to him" with effect from 13.07.2006 and submitted that the amendment being prospective in nature the reliance placed on the expression "any officer of customs subordinate to him" by learned counsel for the appellant was wrong and misplaced. From bare reading of sub-section(2) of Section 129D of the Act as it stood prior to 2006, it is clear as crystal that only an adjudicating authority could be directed/authorised to file appeal before the Commissioner (Appeals), being "such authority", for determination of such points arising out of the decision or order as may be specified by the Commissioner of Customs in his order. Even the reliance placed on sub-section(4) of Section 129D of the Act by learned counsel appearing for the appellant, in support of his submission, also in our opinion, is of no avail to take their case further. Sub-section (4) of Section 129D of the Act cannot be read in isolation. Thus, we do not find any reason to interfere with the order dated 30.11.2004 impugned in the present appeal. Hence, the appeal is dismissed. Dismissal of the appeal shall not preclude the appellant to take a remedy, if any, available in law, if so advised, for redressal of their grievance.

We may place on record a word of appreciation for the assistance rendered by Mr. N. Anand, Amicus Curie.