C.M.A. No. 486 of 2009 and M.P. Nos. 1 and 2 of 2009, W.P. No. 29129 of 2008 and M.P. No. 1 of 2008. Case: Commissioner of Customs (Exports), Chennai Vs Biomed Hitech Industries Ltd. High Court of Madras (India)
| Case Number | C.M.A. No. 486 of 2009 and M.P. Nos. 1 and 2 of 2009, W.P. No. 29129 of 2008 and M.P. No. 1 of 2008 |
| Counsel | For Appellant: Shri K. Ravichandra Babu, SCGSC, and For Respondent: Shri V. Ramachandran, Sr. Counsel for S. Shankaravadivelu, |
| Judges | F. M. Ibrahim Kalifulla & M. M. Sundresh, JJ. |
| Issue | Code of Civil Procedure, 1908 - Section 24; Customs Act, 1962 - Sections 5(2), 129(D), 129A |
| Citation | 2010 (256) ELT 511 (Mad) |
| Judgement Date | July 21, 2010 |
| Court | High Court of Madras (India) |
Judgment:
M. M. Sundresh, J.
1. In view of the fact that the parties to both the cases and the issues involved are one and the same, they have been taken up together for disposal. Since the decision in the writ petition depends upon the decision in the appeal, the issue raised in the appeal is taken up for consideration and the parties therein are arrayed as such for the disposal of both the cases.
2. The one and only issue that arises for consideration in the appeal is as to whether an order passed by the Chief Commissioner of Customs as an adjudicating authority is appealable under Section 129-A of the Customs Act, 1962 or not.
3. Facts in brief:-
3.1. The first respondent had imported capital goods under export promotion capital goods (EPCG) Scheme vide Licence No.01500321 dated 21.03.1996, with zero duty issued by the Director General of Foreign Trade (DGFT), New Delhi, in terms of Notification No.111/95 dated 05.06.1995. Alleging that the first respondent has wrongly availed the benefit of the notification, an investigation was done by the Directorate of Revenue intelligence(DRI) and in pursuant to the same, a show cause notice was issued for misdeclaration seeking to impose a duty of Rs.6,38,90,487/- along with interest apart from confiscation.
3.2. A letter was sent by the Central Board of Excise and Customs to the Chief Commissioner of Customs stating that the pendency on adjudication matters has gone up at the level of Commissioners / Additional Commissioners / Joint Commissioners / Deputy Commissioners / Assistant Commissioners and therefore the same should be disposed of, within a period of six months. The said letter also indicated that the Chief Commissioner of Customs may take up the adjudication of 4 or 5 cases every month. Therefore in pursuant to the said letter, the Chief Commissioner of Customs adjudicated the case involving the first respondent as per the powers conferred on him under Section 5(2) of the Customs Act, 1962. Accordingly the charges initiated against the first respondent have been dropped.
3.3. However based upon the Review Order No.217/R/02 dated 16.10.2002 passed by the Central Board of Excise and Customs, New Delhi, under Section 129(D) of the Customs Act, 1962, an appeal was made to the Appellate Tribunal to revise the order passed in favour of the first respondent. The Tribunal in and by its order dated 03.09.2008 in CESTAT No.1096 of 2008 has returned the appeal as not maintainable on the ground that an appeal under Section 129-A of the Act would only be maintainable against the order passed by the Commissioner of Customs and not Chief Commissioner of Customs. Challenging the same, the appellant has filed the present appeal by raising the following substantial questions of law:
a. Whether the Tribunal is right in dismissing the appeal as not maintainable since the appeal was filed against an order passed by the Chief Commissioner of Customs?
b. Whether the Tribunal is right in ignoring the provisions of Section 5(2) of the Customs Act, 1962 empowering an officer of Customs to exercise the powers and discharge the duties conferred or imposed under the Customs Act on any other officer of Customs who is subordinate to him?
c. Whether the Tribunal is right in not considering that in the case on hand the Chief Commissioner of Customs passed the order in appeal exercising is powers as Commissioner of Customs?
d. Whether the order passed by the Tribunal is inconsistent with the earlier orders in which the Tribunal entertained appeals against the orders of the Chief Commissioner?
4. Similarly seeking the release of bank guarantees furnished by the first respondent, a writ petition was filed by him based upon the order passed in his favour. In order to appreciate the issue involved in the present appeal, the provisions of the Customs Act, 1962 require consideration.
5. Chapter-I deals with the definitions of the words as well as the the authorities covered under the Act. An adjudication authority has been defined in Section 2(1) of the Act and the same is extracted hereunder:
"2(1) "adjudicating authority" means any authority competent to pass any order or decision under this Act, but does not include the Board, [Commissioner (Appeals)] or Appellate Tribunal."
Section 2(8) of the Act defines Commissioner of Customs which is as follows:
"2(8) "Commissioner of Customs", except for the purposes of Chapter XV, includes an Additional Commissioner of Customs."
A proper officer has been defined under Section 2(34) of the Act which is provided hereunder:
"2(34) "proper officer", in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the [Commissioner of Customs]."
The above said provisions under Chapter-I regarding definitions would make it clear that a Commissioner of Customs is an adjudicating authority and a proper officer.
6. Chapter-II deals with Officers of Customs. In this, Section-3 of the Act speaks about the classes of Officers of Customs and the same is extracted hereunder:
3. Classes of officers of customs.-There shall be the following classes of officers of customs, namely:-
(
a) Chief Commissioner of Customs;
(b) Commissioners of Customs;
(c) Commissioners of Customs (Appeals);
[(cc) Joint Commissioner of Customs;]
(d) Deputy Commissioners of Customs;
(e) Assistant Commissioners of Customs; and
(f) such other class of officers of customs as may be appointed for the purposes of this
Act.
Similarly, Section-5 of the Act speaks about the Powers of the Officers of the Customs, which are as follows:
5. Powers of officers of customs.-(1) Subject to such conditions and limitations as the Board may impose, an officer of customs may exercise the powers and discharge the duties conferred or imposed on him under this Act.
(2) An officer of customs may exercise the powers and discharge the duties conferred or imposed under this Act on any other officer of customs who is subordinate to him.
(3) Notwithstanding anything contained in this section, [a [Commissioner (Appeals)]] shall not exercise the powers and discharge the duties conferred or imposed on an officer of customs other than those specified in Chapter XV and section 108.
A reading of the above said Sections would exemplify the fact that there is an hierarchy of officers in the Customs Department. An officer higher in the rank can exercise the power of the officer immediately lower in the rank. The said power is to be exercised for administrative contingency and convenience and expediency as the case may be. However a Commissioner (Appeals) being an officer dealing with the quasi judicial power of adjudication cannot do the work of the other officers except those specified in Chapter-XV and Section 108 of the Act.
7. Chapter-15 speaks about the Appeals. Section 128 of the Act provides for an appeal to the Commissioner (Appeals). Such an appeal is provided from an order passed by an officer lower in the rank than a Commissioner of Customs. Section 129 of the Act speaks about the Appellate Tribunal. The Appellate Tribunal would consist of judicial and technical members making it clear that it is an appellate adjudicating forum. Section 129-A makes it clear that an appeal would lie against the order of the Commissioner of Customs as an adjudicating authority. In other words, when a Commissioner of Customs is not an adjudicating authority then no appeal would lie and that is a reason why the Commissioner (Appeals)...
To continue reading
Request your trial