Judgment:
1. M/s. Wirex Metal Works has filed three appeals being aggrieved from the assessment done on Bill of Entry. In Col. 2 of the Appeal Memo, it has been mentioned as dated 10.1.89 in File No. S/76-Misc. 15/89-IV B/E No. 010514 dated 25.11.88. The said appeals were presented in the Registry on 6.2.89. Sh. N. Singh, learned Consultant has appeared on behalf of the appellants and Sh. A.S. Sunder Rajan.Departmental Representative for the respondents.
2. At the outset of the hearing, Sh. Sunder Rajan raised a preliminary objection that the appeals filed by the appellants are not maintainable as there is no order of the Collector as an adjudicating authority. In his support, he cited the case of Collector of Customs, Calcutta v.Metro Exporters Pvt. Ltd., Bombay, (2) Jayant Oil Mills Pvt. Ltd., Bombay Order dated 28th March, 1988 where the Tribunal had taken a similar view.
3. Sh. N. Singh, learned Consultant who has appeared on behalf of the appellants, stated that the Collector had passed an order in the file and he has not given the copy of that order and the appellants have attached the copy of the Bill of Entry. Sh. Singh states that the appeals are maintainable.
4. We have heard both the sides and have gone through the facts and circumstances of the case. An anneal to the Tribunal lies under Section 129-A of the Customs Act, 1962 under Sub-section (1) of Section 129-A of the Customs Act, 1962. The relevant subsection (1) of Section 129-A is reproduced below :- "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 Customs as an ad-judicat-ing authority; (c) an order passed by the Board or the Appellate Collector of Customs under Section 128, as it stood immediately before the appointed day, (d) an order passed by the Board or the Collector of Customs, either before or after the appointed day, under Section 130 as it stood immediately before that day." A simple perusal of the Sub-section will show that the appeal to the Tribunal lies against a decision or order passed by the Collector of Customs as adjudicating authority or against the order passed by Collector (Appeals). In the matter before us, the appellant has filed a copy of the assessment order on the Bill of Entry. The assessment order has been passed by proper officer viz. Appraiser and the same is countersigned by the Assistant Collector and there is no endorsement on the Bill of Entry to the effect that the assessment has been done in pursuance of an order passed by the Collector of Customs. Even it is not an order. The Tribunal had taken the view in the case of Mahindra & Mahindra Ltd. v. Collector of Central Excise (1983 ECR 1865) that appeal is maintainable before the Tribunal only in case where the order or decision is passed by the Collector of Customs. In the matter before us, there is neither any decision or an order passed by Collector of Customs and as such, the appeals are not maintainable. In another judgment which has been referred by Departmental Representative. Sh.
A.S. Sunder Rajan, in the case of Collector of Customs, Calcutta v.Metro Exporters. Pvt. Ltd. dated 28th March, 1988 passed by the East Regional Bench, the Tribunal had taken the view that where there is a communication before the Collector and Assistant Collector, it is not an adjudication order and no copy of that communication be even served on the assessee. The Tribunal had followed the judgment of the Madras High Court in the case of M. Nazir Hussain v. Assistant Collector [1969 (82) Madras LW 257] and judgment of the Supreme Court in the case of Bachhittar Singh v. State of Punjab and Anr. (AIR 1963 SC 395) in the case of Metro Exporters. Relative extract from the said judgment is reproduced below- "In view of the Hon'ble Madras High Court's judgment in the case of M. Nazir Hussain v. Assistant Collector reported in [1969 (82) Madras LW 257] and Hon'ble Supreme Court's judgment in the case of Bachhittar Singh v. State of Punjab and Anr. reported in (AIR 1963 SC 395) and dictionary meanings, we hold that the order dated 7th January, 1983 is not a decision or order passed by the Collector of Customs, Calcutta as an adjudicating authority and as such the same cannot be a subject matter of appeal before the Tribunal in terms of the provisions of Section 129D of the Customs Act, 1962.
Accordingly, the application under Section 29D to be treated as appeals are not maintainable. In the result both the appeals are dismissed." .
5. In view of the earlier judgments of the Tribunal and the discussion above, we hold that the appeals are not maintainable and dismiss the same. The appellant is at liberty to file an appeal in accordance with law as and when any adjudication order is received by him.