1. This appeal arises out of and is directed against the order in appeal No. S/49-139/84-GC dated 22.12.84 passed by the Collector of Customs (Appeals) Bombay.
2. The facts necessary for the disposal of this appeal lie in a small compass. The appellant N.M. Jagda alias Babubhai Soni at the material time was carrying on busines as the certified goldsmith. The Central Excise officers of Junagadh Division searched the appellant's premises and seized gold ornaments weighing 269 grams valued at Rs. 39,000/-and also certain documents on 11.6.83. The Additional Collector of Central Excise held the enquiry and ordered confiscation of the gold ornaments valued at Rs. 39,000/- but allowed redemption on payment of fine of Rs. 39,000/- and he also imposed a personal penalty of Rs. 1,95,000/-by his order dated 3.7.84. The Additional Collector also cancelled,the certified goldsmith's licence.
3. Being aggrieved by the order, the appellants preferred an appeal before this Tribunal on 1.10.84. It appears the registry by its letter dated 11.10.84 returned the papers to the appellant observing that in view of the Tribunal's order dated 25.11.83, in GC(T)(BOM) A No.2/1982, no appeal could lie to the Tribunal against the order passed by the Additional Collector.
4. Thereafter, the appellant preferred an appeal before the Collector (Appeals) Bombay. The Collector (Appeals) by the impugned order dismissed the appeal as having been improperly filed but advised the appellant to file an appeal before the Tribunal within 30 days from the date of issue of this order.
5. Having regard to the order passed by the Collector (Appeals) the appellants preferred two appeals G.C. No. 57/85 and 58/85 along with two miscellaneous applications for condonation of delay.
6. The Miscellaneous applications and the two appeals were rejected by this Bench. The Bench rejected the appeal No. 57/85 as the same was filed against a letter issued by a Superintendent which was not considered as a quasi-judicial order of the Assistant Collector under Section 82 of the Gold Control Act (hereinafter to be referred to as the Act). During the hearing, the Bench pointed out to Shri N.I. Mehta, the appellant's advocate, that so far as the Tribunal was concerned, the position regarding jurisdiction as to whether the appeal would lie to the Tribunal or Collector (Appeals) against the order passed by the Addl. Collector had been clearly set out in a number of orders holding that jurisdiction lay with the Collector (Appeals). Shri Mehta while, accepting the legal position submitted that the appellant approached the Tribunal by reason of the order passed by the Collector (Appeals).
It was than pointed out to him that the proper course for the appellant was to come up in appeal against the order of Collector (Appeals). Shri Mehta sought permission to withdraw the appeal GC No. 58/85 with a liberty fo file a fresh appeal and with an applicat ion for condonation of delay. The Bench permitted withdrawal with liberty to file a fresh appeal. Accordingly, the appellant has preferred the above appeal with an application for condonation of delay. The delay was condoned.
7. During the hearing of this appeal, Shri Mehta appearing for the appellant urged that the Collector (Appeals) committed an error in holding that no appeal lies to the Collector (Appeals) against the order passed by the Addl. Collector of Customs & C.E. in his capacity as a Gold Control Officer. Shri Mehta contended that the order of the Tribunal in the matter of jurisdiction has laid down in the appeal GC(T)(BOM) A No. 2/82 was binding on the Collector (Appeals). Shri Mehta further submitted that the East Regional Bench" in the case of Sunil Kumar Ghosh v. Collector of Central Excise & Customs, West Bengal 1983 ELT 1964 (CEGAT) had also taken a view that an appeal against the order of the Addl. Collector under the Gold Control Act lies to the Collector (Appeals) and not to the Tribunal. Shri Mehta submitted that to his knowledge, no other Bench of the Tribunal had taken a view contrary to the above.
8. Shri Mehta further submitted that the impugned order is not an order in the eye of law. The Collector (Appeals) did not apply his mind. He passed the order in a mechanical manner. The Collector (Appeals) only referred to the communication as to the amendment of Notification and had not considered the question of jurisdiction independently.
9. Shri Mehta further contended the Notification relied upon by the Collector (Appeals) has not the effect of nullifying the order passed by the Tribunal in CD(TXBOM) 2/82. Shri Mehta urged the effect of deletion of the Addl. Collector in the Notification is that the Addl.
Collector will have no jurisdiction to adjudicate and it will not have the effect of equating the Addl. Collector with the Collector.- Shri Mehta contended that Section 78 has not been amended.
10. After referring to the definitions of the "adjudicating authority", "Gold Control Officer" and the power of the Central Govt. to appoint Gold Control Officer under the Act, Shri Mehta contended that the Addl.
Collector ceased to be a Gold Control Officer and was divested with the power of adjudication. He urged that jurisdiction has to be conferred by a statute by express provision and that jurisdiction cannot be inferred or implied. Shri Mehta finally contended that the appellant's licence also has been cancelled and he is deprived of his means of livelihood, and therefore the Tribunal should issue necessary directions to the Collector (Appeals) not only to entertain the appeal but also to issue a stay as to the operation of the order of the Addl.
Collector in so far as it relates to the cancellation of the licence.
11. Shri Senthivei appearing for the Respondent Collector however contended that the amended notification has the effect of equating the Addl. Collector with that of the Collector and therefore the Addl.
Collector for the purpose of adjudication should be treated as the Collector and therefore the appeal lies to the Tribunal and not to the Collector (Appeals). Shri Senthivei submitted that it is the definitions given in the parent act that should govern the interpretaion and by virtue of the definitions contained in the Customs Act and the Rules made under the Central Excise Act, the Addl.
Collector is a Collector and not an officer below the rank of a Collector. Shri Senthivei submitted though the order of the Collector (Appeals) is not a speaking order, his conclusion is correct in law.
Shri Senthivei further contended that there 'is no need to amend Section 78 of the Act. Since the Collector has been notified as the Gold Control Officer by reason of the definitions contained in the parent acts namely, Central Excise Act and Customs Act, the Collector would include Addl. Collector and therefore Addl. Collectors would also become Gold Control Officers with power of adjudication. He therefore prayed that the appeal may be rejected.
12. We have carefully considered the submissions made on both sides. In order to appreciate the contentions urged, it would be necessary to set out certain provisions of the Gold Control Act, the Notification relied upon by the parties as well as the operative portion of the order of Shri M.S. Kanwal, Collector of Customs (Appeals), Bombay.
13. The definition of the expressions "adjudicating authority" and "Gold Control Officer" are defined in Clauses (a) and (1) respectively of Section 2 of the Act.
14. "Adjudicating authority" means an authority competent to pass any order or decision under this Act, but does not include the Administrator Collector (Appeals) or Appellate Tribunal.
"Gold Control Officer" means a Gold Control Officer appointed under Section 4.
Sub-section (2) of Section 4 empowers the Central Government to appoint by notification as many persons as it thinks fit to be Gold Control Officers for the purpose of enforcing the provisions of the Act.
"The Administrator may authorise such person as he thinks fit to also exercise all or any of the powers excercisable by him under this Act other than the powers under Sub-section (6) of this section and different persons may be authorised to exercise different powers." "A Gold Control Officer shall, subject to such limitations, restrictions and conditions as the Central Government may think fit to impose, exercise such powers and discharge such functions as are specified or conferred, as the case may be, by or under this Act." "Any confiscation may be adjudged or penalty may be imposed under this Act - (a) without limit, by a Gold Control Officer not below the rank of a Collector of Central Excise or of Customs (b) subject to such limits as may be specified in this behalf, by such other Gold Control Officer, not below the rank of a Superintendent of Central Excise, as the Central Government, may, by notification, authorise in this behalf." "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 communiction to him of such decision or order." "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." "In exercise of the powers conferred by Cl.(b) of Section 78, read with Sub-Section (2) of Section 115 of the Gold (Control) Act, 1968 (XLV of 1968), and in supersession of all the notifications of the subject, the Central Government hereby authorises the gold control officers of the rank indicated in col. (2) of the table below to exercise, subject to the limits specified in col. (3) of the said table, the powers of adjudication, confiscation and imposition of penalty conferred by the said Act:---------------------------------------------------------------------- Sl.No. Rank of Officer Limits of the power 1 2 3 1. (a) Asstt. Collector of C.E. Where the value of the gold (b) Asstt. Collector of Customs liable to confiscation (whether such gold is available for 2. (a) Dy. Collector of C.E. (i) where the value of the gold liable to confiscation (whether3. Addl. Collector of Customs (i) where the value of the gold liable to confiscation (whether such gold is By notification No. S.O. 417(E) dated 6.6.84, the item 3 in the Notification dated 27th December 1980 has been deleted.
Now coming to the order of the Collector (Appeals), the operative portion reads:- "The Government of India, Ministry of Finance, Department of Revenue, New Delhi has, however, communicated in its letter F.No. 116/75/83-GOI dated 27/31.7.84 (Circular No. 2/84) that an amendment having been carried out by Notification No. S.O. 417(E) dated 6.6.84 to the earlier Notification, appeal against the order of an Additional Collector of Customs/Central Excise, under the Gold Control Act shall continue to lie with the Customs, Central Excise and Gold Control Appellate Tribunal as hitherto communicated in the Ministry's D.O. letter No. l31/159/81-C.C.II dated 11.12.82.
The undersigned is, therefore, not the authority competent to hear this appeal which is against the order of the Additional Collector of Customs and Central Excise, Rajkot.
The appeal is, accordingly, dismissed for having been improperly filed. The appellant, is however, advised to file an appeal before the Customs, Central Excise and Gold Control, Appellate Tribunal, Western Regional Bench, at Bombay within 30 days from the issue of this order.
15. Before considering the legal issue, namely whether an appeal against the order passed by the Addl. Collector of Central Excise in his capacity as Gold Control Officer lies to the Appellate Tribunal or to the Collector (Appeals) it is necessary to go into the order passed by Shri Kanwal, Collector of Customs (Appeals). Shri Kanwal had dismissed the appeal filed by the appellant. After dismissing the appeal, he has given a gratious advice to the appellant to file an appeal before the Appellate Tribunal. He has further given the appellant 30 days time from the date of issue of order to prefer an appeal before the Appellate Tribunal. The only reason given by the Collector (Appeals) for dismissing the appeal was that in the Ministry's D.O. letter No. 131/159/81GC II dated 11.12.82, it was stated that an amendment had been carried out by S.O. 417(E) dated 6.6.84 to the earlier Notification and by reason of this Notification, an appeal against the Order of the Appellate Collector of Customs/ Central Excise, under the Gold Control Act shall continue to lie with the Customs, Central Excise and Gold Control Appellate Tribunal. The whole order of the Collector (Appeals) is based on an administrative instructions stated to have been communicated to him.
16. Under the Amended Act, the Collector of Customs (Appeals) is constituted as a quasi judicial Tribunal. The Collector (Appeals) is required to act judicially while deciding the appeals filed before him.
The Collector (Appeals) is not saddled with the adjudications. The Collector (Appeals) is not included in the definition of "adjudicating authority". Under Section 5(3) of the Customs Act, the Collector (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 of the said Act. From this scheme of the Act, it is clear that the Parliament intended that the Collector of Customs (Appeals) should be an independent authority.
Administrative instructions cannot be issued to a quasi judicial tribunal in regard to its judicial functions. In any case, such administrative instructions will not be binding on the quasi judicial tribunals. Issue of administrative instructions to quasi judicial tribunals regarding its judicial functions would amount to interference in its independent exercise of its powers. The quasi-judicial Tribunal is well within its right to ignore such administrative instructions. In this connection, I may usefully refer to the observations of the Supreme Court reported in the AIR 1969 Supreme Court Page 48 Orient Paper Mills Ltd. v. Union of India. The Supreme Court "No authority however high placed and control the decision of a judicial or quasi-judicial Authority that is the essence of our judicial system. It is true that the Assessing Authorities as well as the Appellate Authorities are Judges in their own cause, yet when they are called upon to decide dispute arising under the Act they must act independently and impartially. They cannot be said to act independently if their judgment is controlled by the Direction given by others. Thus it is a misnomer to call their orders as their judgments, they would essentially be the judgment of the authority that gave the directions and which authority had given those judgments without hearing the aggrieved party.
That in exercising their authority and in discharging the quasi-judicial function the Tribunal constituted under the Act must be left absolutely free to deal with the matter according to their best judgment. It is of the essence of fair and objective administration, of law that the decision of the Judge or the Tribunal must be absolutely unfettered by any extraneous guidance by the Executive or Administrative Wing of the State. If the exercise of discretion conferred on a quasi judicial Tribunal is controlled by any such direction, that forges fetters on the exercise of quasi judicial authority and the presence of such fettering would make the exercise of such authority completely inconsistent with the well accepted notions of judicial process." 17. There is considerable force in the contention of Shri Mehta that the Collector (Appeals) did not apply his mind to the issue involved.
He had totally surrendered his judgment to the judgment of an extraneous authority and on this ground alone, his order is liable to be set aside.
18. Besides the above illegality in the order, the Collector (Appeals) committed one more illegality. When he had come to the conclusion on the basis of some other authority's judgment, that he has no jurisdiction to entertain the appeal, the only course open to him was to return the appeal records for presentation to the proper authority and he cannot dismiss the appeal particularly when the party did not contend or sought a finding as to the jurisdiction. The Collector (Appeals) exhibited ignorance of elementary principles of law.
19. Besides the illegalities referred to above, the Collector (Appeals) had committed impropriety. While filing the appeal, the appellant had brought to the notice of the Collector (Appeals) that originally they had preferred an appeal against the Addl. Collector's order before the Tribunal and the Tribunal had returned the papers for being presented before the Collector (Appeals). Normally, the Collector (Appeals) should respect the decision of the Appellate Tribunal. He cannot ignore the decision unless the decision of the Tribunal was set aside by a superior Tribunal such as the High Court or Supreme Court, or the view taken by the Tribunal was contrary to a view taken by the High Court within whose jurisdiction the Tribunal as well as the Collector (Appeals) function or there is a contrary decision of the Supreme Court. What is strange is about the direction the Collector (Appeals) gives to the party. He directs the appellant to present the appeal before the Tribunal within 30 days from the date of issue of his order.
He arrogates himself to the status of- a superior Tribunal. Further, once the appeal has been dismissed, the question of granting time to file an appeal before the superior tribunal or giving a gratituous advice as to where the appeal should lie would hot be within the province of the Collector (Appeals).
20. While dealing with the binding nature of the law declared by High Court on all subordinate courts and Tribunals, the Supreme Court in East India Commercial Co. Ltd. v. Collector of Customs, Calcutta (Reported "It would be anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by that court and start proceedings in direction violation of it. If a tribunal can do so, all the subordinate courts can equally do so, for there is no specific provision, just like in case of Supreme Court, making the law declared by the High Court binding on subordinate courts. It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should confirm to the law laid down by it. Such obedience would also be conducive to their smooth working; otherwise, there would be confusion in the administration of law and report for law would irretrievably suffer." 21. Under all the three Acts, namely, Gold Control Act, Central Excises & Salt Act and the Customs Act, appeal is provided to the Appellate Tribunal against a decision or order passed by the Collector (Appeals).
Therefore, it could be said that Appellate Tribunal is a superior tribunal vis-a-vis Collector (Appeals). If the Collector (Appeals) ignores the decision of the tribunal, there would be as observed by the Supreme Court con-fision in the administration of law and respect for law would irretrievably suffer. We wish the Collector (Appeals) had borne this aspect in mind while passing the impugned order.
22. We are satisfied that while passing the order of dismissal, the Collector (Appeals) surrendered his own judgment. The order of dismissal virtually came from governmental instructions and the Collector (Appeals) acted only as a transmitting agent. We therefore, unhesitatingly set aside his order.
23. The setting aside the order of the Collector (Appeals) by itself gives no relief either to the appellant or to the respondent. It is necessary to consider the legal issue, namely, as to whether an appeal against an order passed by the Additional Collector of Central Excise as Gold Control Officer lies to the Appellate Tribunal or to the Collector (Appeals). This question came up for consideration before this Bench in Appeal GC(T) (BOM) A No. 2/82. This Bench by its order dated 25.11.83 held that an appeal against the order passed by the Additional Collector of Central Excise as the Gold Control Officer does not lie to the Tribunal. Shri Senthivel appearing for the respondent Collector did not bring to our notice any decision of any other Bench of the Tribunal or that a High Court or the Supreme Court taking a view contrary to the view taken by this Bench. On the other hand the appellant's learned Advocate, Shri M.I. Mehta, submitted that the East Regional Bench of the Tribunal had taken a view similar to the view taken by this Bench.
24. Shri Senthivel appearing for the respondent Collector contended that the decision of this Bench in GC(T) (BOM) A. No. 2/82 was mainly based on the Notification No. S.O.985(E) dated 27.12.80 and that the Central Government by Notification No. SO. 4l7(E) dated 6.8.84 amended the earlier notification, thereby the limits placed on the Additional Collector has been deleted. After the deletion the Additional Collector's power of adjudication is unlimited. Therefore, against his order the appeal would lie to the Tribunal and not to the Collector (Appeals). Shri Senthivel had further contended that in the matter of adjudication the Additional Collector should be treated as the Collector and for this purpose the definitions given in the parent Acts of the expression 'Collector' should be taken into consideration. It was also urged by Shri Senthivel by Notification No. S.O. 2319 dated 29.6.68 the Central Government had appointed all officers of the Central Excise of and above the rank of sub-Inspectors, and all officers of the Customs of and above the Preventive Officers as Gold Control Officers. By virtue of the said notification, the Additional Collector of Customs as well as Central Excise could exercise the powers conferred on the Collector under the Gold (Control) Act.
25. As has been noticed earlier power has been conferred on the Central Government to appoint as many persons as it thinks fit to be Gold (Control) Officers for the purpose of enforcing the provisions of the Gold (Control) Act. The Act does not place any restrictions on the Central Government as to the Officersto be appointed as Gold (Control) Officers. The Officers to be appointed need not be the officers of Customs and Central Excise departments only. They could belong to any other department. Unless a person is appointed as the Gold (Control) Officer he cannot exercise any of the powers under the Gold (Control) Act. Since all the officers above the rank of a Sub-Inspector of Central Excise has been appointed as Gold Control Officers by Notification No. S.O. 2319 dated 29.6.68 it could be said that the Additional Collector of Central Excise is a Gold Control Officer entitled to exercise the powers conferred on him under the Gold (Control) Act. The question for our consideration is not whether the Additional Collector of Central Excise is a Gold Control Officer or not. The question for our consideration is whether an appeal lies to the Appellate Tribunal or to the Collector (Appeals) against the order passed by the Additional Collector of Central Excise as Gold Control Officers. This question was dealt with in GC(T)(BOM) A.No. 2/82. The Bench which decided that the appeal did take into consideration the effect of Notification S.O. 985(E) dated 27.12.80, but then the Bench also considered the arguments of Shri Krishan Kumar who represented the respondent Collector in that appeal, namely, that the Additional Collector of Central Excise is equal in rank to that of the Collector of Central Excise and that for that purpose the definition given in the Central Excise Rules should be looked into. The Bench observed 'the contention of Shri krishan Kumar that for the purpose of determination of the rank of Additional Collector, the provisions of the Central Excise Act shall have to be looked into is untenable'. The Bench had further observed that 'for the purposes of Customs and Central Excise Acts, the Additional Collector was deemed as the Collector by reason of the definition, but then the Gold (Control) Act did not contain any such definition.
26. While exercising the powers and discharging the functions under the Gold (Control) Act, the Additional Collector of Central Excise acts in his capacity as a Gold Control Officer and not in his capacity as an Additional Collector of Central Excise. In considering the question whether the Additional Collector of Central Excise exercising powers as a Gold Control Officer is an officer lower in rank than the Collector, one has to look into the provisions of the Gold (Control) Act and not to the provisions of Central Excise or the Customs Act. It may be pointed out that it is for the purposes of those two Acts the expression 'Collector' included the Additional Collector. In S. Kumar and Ors. v. the Collector of Central Excise and Ors. (1983 ELT 1057) (CEGAT) it was argued before the larger Bench that the Additional Collector of Central Excise is an officer lower in rank than the Collector. In support of this contention, two decisions of the Supreme Court reported in AIR 1965 S.C. 1619 and AIR 1969 S.C. 483 were relied upon. These two decisions were considered by the larger Bench on page 1078 at paragraph 84 and 85. It reads:(Ajaib Singh v. Gurbachan Singh) where it was held that no officer below the rank of a District Magistrate can exercise the power of detention, and that an 'Additional District Magistrate', vested with the powers of a 'District Magistrate' within Section 10(2) of the Code of Criminal Procedure could not be deemed to be District Magistrate, in law for the purpose of authorising detention under the Defence of India Act, 1962. The authority is clearly distinguishable because it was not a case of any deeming definition, given in the Act, but conferment of power which had to be done by the State under Section 10(2) of the Code of Criminal Procedure, 1898 by specific orders. It was in this context that it was held that Additional District Magistrate who could be given the power of a District Magistrate by the State Government under Section 10(2) of the Criminal Procedure Code could not be taken to be a District Magistrate for the purpose of Defence of India, Act, because the equation is not automatic, as by means of a definition, but 'as the State may direct'.
For the same reason, another authority of Supreme Court cited by Shri R.K. Jain as AIR 1969 SC 483 (Hari Chand Aggarwal v. The Batala Engineering Co. Ltd. and Ors.) is also distinguishable, because that also relates to Defence of India Act vis-a-vis Section 10(2) of the Criminal Procedure Code, because there it was only by resorting to notification issued under Section 10(2) of the said Code, that the Additional District Magistrate was conferred certain powers of the District Magistrate, and it was not a case of any deeming definition, as in the case reported in AIR 1961 SC 606, to which reference has already been made, because in that case intention of the legislature was inferred to mean, by providing an inclusive definition of the District Magistrate with the result that functions intended to be exercised by a District Magistrate could be exercised by an Additional District Magistrate also, whereas there was no such provision in the Defence of India Act." It is thus clear that in the absence of a definition of the Collector in the Gold (Control) Act, the Additional Collector of Central Excise cannot be equated with the Collector.
27. On careful consideration of all the aspects we hold that for the purpose of Gold (Control) Act the Additional Collector of Central Excise is an officer lower in rank than that of a Collector of Central Excise, and therefore, the appeal against his order does not lie to the Tribunal and it lies to the Collector (Appeals).
28. Having regard to our above findings we set aside the order passed by the Collector (Appeals) and direct the Collector (Appeals) to take on file the appeal filed by the appellant herein and dispose of the same on merits.
29. On behalf of the appellant Shri Mehta had pleaded that the Additional Collector besides imposing a penalty and ordering confiscation of gold ornaments had cancelled the certificates issued to the appellant, as a result ever since the date of order of the Additional Collector, namely, 3.7.84 the appellant is deprived of his means of livelihood. He has prayed for stay of operation of that part of the order or in the alternative to direct the Collector (Appeals) to grant a stay of that part of the order or in the alternative to direct the Collector (Appeals) to dispose of the appeal by fixing a time 'schedule for the disposal of the appeal by the Collector (Appeals).
Since we are not considering the appeal filed against the order of the Additional Collector we do not think it proper to issue any stay order at our level. Suffice if you observe that that part of the order of the Additional Collector by which he cancelled the goldsmith certificate is wholly without the jurisdiction. The power of cancellation or suspension of a licence or certificate is conferred on the Administrator or a person duly authorised by the Administrator under Sub-section (5) of Section 4 of the Act. The Collector (Appeals) may consider this aspect while considsring the request of the appellant for stay of that part of the order of the Additional Collector.
30. The order of the Additional Collector is dated 3.7.84. More than a year had elapsed. If the appeal did not involve a question of jurisdiction, probably the Collector (Appeals) would have disposed of the appeal by this time. We, therefore, direct that the Collector (Appeals) shall dispose of the appeal within a period of 2 months from the date of receipt of this order.