1. The Additional Collector of Central Excise and Customs, Nagpur has filed an appeal against Order No. S/49-94/81 GC (Nagpur) dated the 10th day of November, 1982 passed by the Collector of Customs (Appeals), Bombay.
2. Briefly, the facts of the case are that on 7-4-1981, Preventive Officers, Amravati Division, during the course of checking of the accounts and stock of the respondent found that he was in possession of primary gold weighing 592.200 gms. He had a gold smith's licence. As per provisions of Section 42(ii) a goldsmith can have 300 gms. and thus the respondent had 292.200 gms. gold in excess as per the version of the appellant. A show cause notice dated 22-7-81 was issued to the respondent to show cause why penal action should not be taken on him under Section 74 of the Act and why the seized gold should not be confiscated under Section 71 of the Act. Respondent had filed a reply.
The officers bad asked only for GS 13 register. Respondent had also obtained a Gold Dealer's Licence on 4-4-81 and he had surreudsred his certificate to Inspector Khan- As per Panchanama GS-13 record was certified and checked by Officer at 10.40 hrs. and panchanama also shows that 592.200 gms. of gold were primary gold. Respondent had not shown GS-11 and GS-12 registers which are required to be maintained by the Gold Dealer. The Revenue authorities had held that the respondent is a certified goldsmith and not a licensed gold dealer and as such provisions of Section 42 will apply.
3. Shri Krishan Kumar, learned departmental representative on behalf of the appellant has submitted before me that the Order passed by the Collector of Customs (Appeals) is illegal and void in the eyes of Law and is without jurisdiction, and the grounds of appeal on the point of jurisdiction are as under: (i) The order passed by the Learned Collector of Customs (Appeals), Bombay appears to be without jurisdiction in so far as- (i) Rule 2(ii) of the Central Excise Rules, 1944 was amended by Notification No. 110/81, dated 29-4-81 and since then the expression "Collector" includes "Additional Collector" for the purpose of Central Excise Rules, 1944.
(ii) According to the provisions of Section 80(1) of the Gold Control Act, 1968 prior to coming into force of the new provisions any person aggrieved by any decision or order made under that Act could prefer an appeal where the decision or order has been made by a Collector of Central Excise or of Customs, as the case may be, to the Gold Control Administrator and, where the decision or order had been made by any officer below the rank of a Collector of Central Excise or of Customs, to whom the officer, who made such decision or order is subordinate or if the Central Government so directs to the Appellate Collector of Customs w.e.f. 24-11-79, the appellate powers of Collector, Central Excise & Customs were taken away and the Central Govt. had directed that "appeals against the orders passed by the officer subordinate to the Collector, would lie to the Collector of Customs (Appeals).
(iii) In view of the above provisions the appeal against the order of the Additional Collector lay with the Gold Control Administrator and not with the Collector of Customs (Appeals), Bombay.
(iv) The present appeal has been decided by the Collector of Customs (Appeals), Bombay on 10-11-82 i.e. after the amendment referred to above. Accordingly, the impugned order is without jurisdiction.
4. The departmental representative has further prayed that in case this Court does not accept the plea of the appellant on the point of jurisdiction, then the order is not also sustainable on merits as per the ground of appeal No. (v) which is as under : (v) Without prejudice to the above submissions, the order is not sustainable on merits also, in view of the facts mentioned in paras (a), (b) and (c) of para 10 above. The transactions in gold which are the subject matter of the order were entered into by Shri Nandlal qua a certified goldsmith and not as a licensed gold dealer as such. The provisions of law applicable were Section 42, and not Section 32 of the Gold (Control) Act, 1968.
5. The learned departmental representative has submitted before me that the order was passed by the Additional Collector of Customs and Central Excise, Nagpur and the appeal from this order should have been filed before the Gold Control Administrator. He has further submitted that in view of Rule 2(ii) of the Central Excise Rules, 1944 as amended by Notification No. 110/81, dated 29-4-81 expression "Collector" includes "Additional Collector" and as such Collector of Customs (Appeals) had no jurisdicton to hear the appeal. He has submitted that since the Order passed is without jurisdiction it should be quashed. In the alternative, on merits of the case, he relies on the order passed by the Additional Collector of Customs & Central Excise and submits that the appellant had only shown G.S. 13 Register at the time of checking by the officers and had not shown G.S. 11 and G.S. 12 registers, and it is an after thought and as such the respondent's plea that he is a gold dealer and not a goldsmith should not be accepted and the order passed by the Additional Collector should be restored.
6. Shri S.G. Lone, Advocate on behalf of the respondent has submitted that there is no lapse on the part of the respondent in any way. The respondent had rightly filed the appeal and first page of the Order passed by the Collector, Note No. 2 had particularly directed that any person deeming himself aggrieved by this order may appeal against the order to the Collector of Customs (Appeals), Meher Building, Chowpathy, Bombay-400007, within 3 months from the date of this order. The respondent had filed an appeal after reading Note No. 2 of the first of the order. There is no lapse on the part of the appellant. If at all there is any irregularity, the same is on the part of the appellant and not respondent. The respondent had filed the appeal before the Collector of Customs (Appeals) in good faith and if the respondent is made to suffer on this count, he shall suffer an irreparable loss. On merits, the learned counsel has submitted that whereas the appellant has ceased to be a goldsmith and he had become a gold dealer, non-production of GS-11 and GS-12 registers should not lead to an adverse inference. The learned counsel for the respondent has stated that he had become a gold dealer licensee a couple of days before the seizure and has surrendered the goldsmith licence. It is stated before me that it is a matter of fact on record that the respondent was a gold dealer on the date of seizure, i.e. 7-4-81. He has prayed that the appeal filed by the Revenue should be dismissed.
7. I have heard both the sides. The adjudicating order was passed by the Additional Collector of Central Excise & Customs, Nagpur on 7th day of October, 1981 before the amendment to Finance Act (No. 2) of 1980, old Section 80 of the Gold Control Act. The relevant extract is reproduced below : "80 Appeal. -(1) Any person aggrieved by any decision or order made under this Act, may prefer an appeal, - (a) where the decision or order has been made by a Collector of Central Excise or of Customs, as the case may be, to the Administrator ; (b) where the decision or order has been made by any officer below the rank of a Collector of Central Excise or Customs, as the case may be,- (i) to the Collector of Central Excise or of Customs, as the case may be, to whom the officer who made such decision or order is subordinate, or (ii) if the Central Govt. so directs, to the Appellate Collector of Customs, within a period of three months from the date of communication to such person of the decision or order." 8. A simple reading of Section 80 (l)(a) substituted by Finance Act (No. 2) of 1980, abundantly makes clear that the appellant should have been filed before the Gold Control Administrator. In this case, the appeal has been filed before the Collector of Customs (Appeals), Bombay. Undoubtedly, the respondent had filed the appeal before the Collector (Appeals) in view of Note No. 2 on page 1 of the Order passed by the Additional Collector of Customs & Central Excise, Nagpur which is reproduced below : "(2) Any person deeming himself aggrieved by this order may appeal against the order to the Collector of Customs (Appeals), Custom House, Meher Building, Chowpathy, Bombay-400007." This means there is no fault on the part of the respondent in any way.
Respondent had filed the appeal before the Collector of Customs (Appeals) in view of the note by the Additional Collector of Customs & Excise, Nagpur. It is an estoppel on the part of the revenue. Now Revenue cannot say that the appeal is wrongly filed before the Collector of Customs (Appeals). Section 99 of the Code of Civil Procedure, Act V of 1908 which deals with the jurisdiction of the Court runs as under : "No decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. Provided that nothing in this section shall apply to non-joinder of a necessary party." It was held by Hon. Punjab High Court in the case of Yogeshwar Raj v.Yog Raj, 1967 A. Punjab 163 (1966) 68 Punjab L.R. 214-that when a suit has been decided after going into merits and judgment delivered, the appellate court would not entertain an objection as to jurisdiction unless it has resulted in failure of justice. Thus, in a suit for accounts if the trial Court has tried the issues on merits and passed a preliminary decree the appellate Court in an appeal against that decree would refuse to go into the question of territorial jurisdiction.
9. In the case before me the appellant's plea on the point of jurisdiction cannot be accepted as no failure of justice has been effected. At this stage, if the appellant's plea as to the question of jurisdiction is accepted and the order passed by the Collector of Customs (Appeals) is set aside, the appellant shall suffer an irreparable loss and shall have to face unnecessary litigation. The respondent has filed the appeal as per Note No. 2 of the Order passed by the Additional Collector which has been reproduced and discussed above. In the result, in view of the Punjab High Court in the case of Yogeshwar Raj v. Yag Raj, 1967 A. Punj. 163 (1966) 68 Punj. L.R. 214, extract taken from Code of Civil Procedure by Mulla 14th edition, pages 592-593, / hold that though the Collector of Customs (Appeals) had no jurisdiction, the order passed by him does not in any way result in the failure of justice. Now, coming to the merits of the case, I hold that it is an admitted fact that the respondent has surrendered his Goldsmith licence a few days back and had obtained a Gold Dealer's Licence, fully corroborates the respondent's plea that he had ceased to be a goldsmith and had become a gold dealer. In the result, the Order passed by the Collector of Customs (Appeals) is confirmed and the appeal filed by the Revenue is dismissed.