1. This appeal arises out of and is directed against the order No.S/49-435/83M, dated 28.1.84 passed by the Collector of Customs (Appeals'), Bombay.
M/s. State Chemicals and Pharmaceuticals Corporation of India Ltd. imported a consignment of 56 drums containing drugs. It appears that 17 drums were originally not landed at the Bombay Port but the importers paid customs duty on 25.1.82. On be half of the importer their clearing agent filed a refund claim dated 5.2.82 in respect of the short-landed 17 drums. Subsequently the State Chemicals and Pharmaceuticals Cor poration of India Ltd. learnt that those 17 drums were over-carried to Cochin and there after landed in Bombay.
The clearing agents found the drums damaged. Therefore, there was a survey and the survey disclosed certain shortage. As a result the importers became entitled to the refund of Rs. 5,703.20. The clearing agents made an amended claim dated 27.8.82 amending the grounds on which the refund was sought and also the amount, namely, from Rs. 13,355.51 to Rs. 5,703.20.
The Asstt. Collector of Customs rejected the claim as barred by time on the ground that the duty was paid on 25.1.82 and the claim was made on 28.8.82 which was beyond the period of six months time limit laid down under Section 27(1) of the Customs Act, 1962.
Neither the clearing agents nor M/s. State Chemicals and Pharmaceuticals Cor poration of India Ltd. filed any appeal before the Collector (Appeals). The present ap pellants, viz. State Trading Corporation of India however preferred an appeal against the order of the Asstt. Collector. The Collector(Appeals) by the impugned order rejected the appeal holding that the appellants have no locus standi and that the appeal was improperly filed. Feeling aggrieved by the said order, as stated earlier, the State Trading Corporation have come up in appeal.
3. During the hearing of this appeal Shri Dhurve firstly submitted that the rejec tion of the claim by the Assistant Collector was not justified. He contended that the claim for refund had been made within the period of limitation. Amendment was only as to the amount and also as to the ground because of the subsequent events and as such the Asstt. Collector was wholly unjustified in treating the amended application as the application for refund. The second contention of Shri Dhurve was that the Collector (Appeals) did not give any personal hearing before rejecting the appeal. Therefore, his order is bad in law. Shri Dhurve contended that the Collector (Appeals) is a quasi-judicial authority and a quasi-judicial authority before passing an adverse order ought to have given a per sonal hearing to the party that would be affected by the order and since no such personal hearing was granted the order of the Collector (Appeals) is bad in law. In support of this contention Shri Dhurve relied upon the decision of the Bombay High Court reported in 1987 (31) ELT 636 (Bom.). Shri Dhurve also submitted that decision of the Bombay High Court is binding on the Tribunal and in that connection he relied on the decision of the S.C.reported in 1983 ELT 1342 (SC). Thirdly, Shri Dhurve contended that the Asstt. Collector also had not given personal hearing and, therefore, his order is also bad in law.
4. Shri Prabhu appearing for the Collector, however, submitted that there is no infirmity in the orders passed by the authorities below. He submitted that the earlier claim was based on short-landing but later the claim was amended and a new claim based on shortages was made and that claim was made beyond the period of limitation and as such the Asstt. Collector was justified in holding that it was barred by time.
As regards the Collector (Appeals) order Shri Prabhu contended that the present appellants did not seek any personal hearing in the memorandum of appeal and, therefore, the Collec tor (Appeals) was not required to grant personal hearing/In this connection Shri Prab hu placed reliance on the provisions of Section 128-A(1) of the Customs Act. He, therefore, submitted that the present appeal may be rejected. ' 5.I have considered the submissions made on both the sides. I specifically asked Shri Dhurve whether the present appellants had stated in their memorandum of appeal filed before the Collector (Appeals) as to how they were entitled to present the appeal against the order of the Asstt. Collector. Shri Dhurve was also asked Whether any ground had been taken in the appeal memo as to the denial of principles of natural justice by the Asstt. Collector. Shri Dhurve after perusing the copy of the memorandum of appeal found in his records frankly admitted that the State Trading Corporation had not stated that they were successor in interest of M/s. State Chemicals and Pharmaceuticals Cor poration of India, and they had also not taken any ground as to the denial of principles of natural justice.
6. The right of appeal is a statutory right and not a common law remedy. Section 128 of the Customs Act provides an appeal against the order passed by an officer of Cus toms lower in rank than a Collector of Customs to the Collector (Appeals) by an ag grieved person. Thus the right is conferred on the aggrieved person and not on any other person.
Therefore, it is necessary for the appellants to allege in the appeal memo that the appellant was the aggrieved by the order of the lower authority. From the order of the lower authority it is clear that State Trading Corporation was not a party to the proceedings before the Asstt. Collector. In the Memorandum of Appeal the State Trading Corporation did not state that it was a successor in interest of the State Chemicals and Pharmaceuticals Corporation of India. In the said circumstances if the Collector (Appeals) had held that the appellant before him had no locus standi, no exception can be taken to such an order passed by the Collector (Appeals). The grievance of Shri Dhurve was that the Collector (Appeals) ought to have given a personal hearing to the State Trading Corporation and since no such personal hearing was given, his order is bad in law, inasmuch as there had been a denial of the principles of natural justice. When I drew Shri Dhurve's attention to the tion (1) of Section 128-A which reads: "The Collector (Appeals) shall give an opportunity to the appellants to be heard if he so desires" Shri Dhurve submitted that in spite of that statutory provision the Collector (Ap peals) is duty bound to grant a personal hearing since he had passed an order which is adverse to the State Trading Corporation. As stated earlier, Shri Dhurve relied upon the judgment of the Bombay High Court. Neither the judgment of the Bombay High Court nor the decision referred to therein had considered the provisions of Section 128-A(1) or similar provisions of any other Act.
The decision of the Bombay High Court decisions are applicable where the statute did not specifically provide for granting of personal hearing. Section 128-A(1) of the Customs Act requires that if an appellant desires that he should be heard personally before his appeal is finally decided he should make a specific request to that effect, preferably in the memorandum of appeal or by a separate letter. But then the request should be made before the appeal is finally heard. If an appellant does not avail of the opportunity statutorily provided he cannot complain of lack of opportunity just because the order of the appellate authority was adverse to him. Section 128-A(1) embodies the principles of natural justice. Availing of an oppor tunity of being heard is optional. It is left to the appellant. The grievance of lack of op portunity of being heard by an appellant who did not avail of the mandate of the statute cannot be countenanced. There is no merit in the contention of Shri Dhurve that the ap pellate authority before passing an adverse order is required under law to grant a per sonal hearing even in the absence of a request to that effect. The policy and object behind such a statutory provision is for speedy disposal. This object gets defeated if Shri Dhurve's contention was to be accepted.
7. Since the statute specifically provides that the appellant should seek a per sonal hearing if he so desires [as is the case under the Customs Act vide Section 128 A(1)] there is no scope to apply the principles laid down in the judgment of the Bombay High Court and the'decisions referred to therein. In that view of the matter, there is no need to go into the question of binding nature of the decision of the Bombay High Court or to consider the decision cited by Shri Dhurve, namely, 1983 ELT 1342 (SC).
8. Shri Dhurve admits that State Trading Corporation is having their own legal advisers. In that case, one cannot expect an organization like STC not to aver in the ap peal memorandum as to their competence or right to file the appeal. This only exhibits their gross negligence and callousness.
9. The amalgamation of STC and State Chemicals and Pharmaceuticals Cor poration of India took place on 31.3.82. This date is earlier to the date on which the Asstt. Collector had passed his order. The STC did not get itself impleaded before the Asstt. Collector also. Shri Dhurve submitted that the clearing agents M/s. Kamat & Co. were representing STC in all their matters. Shri Dhurve was questioned as to whether M/s.
Kamat & Co. were specifically authorised to represent the STC before the Asstt. Col lector in this matter. Shri Dhurve admitted that no such specific authorisation was granted; but he reiterated that they were representing the STC in all their matters. Thus, it is clear that when Kamat & Co. addressed their letter dated 27.8.82 by which they amended the ground as well as the amount of refund, they were representing a non-ex isting firm and not STC. The authorisation given by State Chemicals and Pharmaceuti cals to M/s. Kamat & Co. came to an end when the amalgamation took place. Thus, throughout the proceedings the STC did not evince any interest. In the circumstances I will not be justified in giving another opportunity to the STC to go before the Collector (Appeals) and to reagitate the matter on the ground that they became successor in in terest of the State Chemicals and Pharmaceuticals Corporation of India. I, therefore, reject this appeal.