Syed Abdul Hameed Vs. Collector of Customs - Court Judgment

SooperKanoon Citationsooperkanoon.com/4954
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided OnMay-02-1989
Reported in(1989)(24)LC72Tri(Delhi)
AppellantSyed Abdul Hameed
RespondentCollector of Customs
Excerpt:
1. an interesting question of jurisdiction of the tribunal has arisen in this case.2. brief facts relevant to the question under consideration are as follows :- a spot adjudication order no. 4830/87 dated 17-11-1987 has been passed by the deputy collector of customs, cargo unit, cargo complex, palam.3. prima facie in view of the designation of the authority passing the aforesaid order of adjudication, it should have been appealed against to the collector of customs (appeals) in terms of section 128 of the customs act. the appellant has, however, filed an appeal to the tribunal on the presumption that the officer shri k.s. sivaraman, who has passed the aforesaid order has been appointed as additional collector of customs, delhi w.e.f. 8-12-1986. the learned consultant for the appellant.....
Judgment:
1. An interesting question of jurisdiction of the Tribunal has arisen in this case.

2. Brief facts relevant to the question under consideration are as follows :- A spot adjudication order No. 4830/87 dated 17-11-1987 has been passed by the Deputy Collector of Customs, Cargo Unit, Cargo Complex, Palam.

3. Prima facie in view of the designation of the authority passing the aforesaid order of adjudication, it should have been appealed against to the Collector of Customs (Appeals) in terms of Section 128 of the Customs Act. The appellant has, however, filed an appeal to the Tribunal on the presumption that the officer Shri K.S. Sivaraman, who has passed the aforesaid order has been appointed as Additional Collector of Customs, Delhi w.e.f. 8-12-1986. The learned Consultant for the appellant has taken support from an Order No. 21/87 published in the Gazette of India, October 10,1987 [Part I - Section 2] Page 1224. In order to appreciate the controversy, we set out below the order reproduced in the aforesaid Gazette :- "No. 21/87 - On transfer the following officers of the grade of Deputy Collector of Customs and Central Excise assumed charge of the post indicated against each with effect from the dates mentioned in Column 4 :------------------------------------------------------------------------------------Sl. No.Name of the officer Posting given Date of as------------------------------------------------------------------------------------25 K.S. Sivaraman Addl. Collr. of Customs, Delhi.

08-12-1986----------------------------------------------------------------------------------- It is also submitted on both sides that under a separate order relating to powers of adjudication of various officers of Customs, the case was fit to be adjudicated by a Deputy Collector of Customs. An extract from Central Board of Excise and Customs' letter F. No. 437/8/76-Cus. IV dated October 12,1976 is reproduced below :- "After careful consideration in the Board, it has been decided that in partial modification of Board's earlier instructions contained in their letter No. 22-9-1979-Cus. IV dated the 8th June, 1970, other conditions remaining the same, the Deputy Collectors may adjudicate cases where the value of the goods is less than Rs. 1,00,000 and the normal fine is less than Rs. 1,00,000/.

Deputy Collectors may also impose personal penalties upto Rs. 1,00,000/." 4. Question is whether in the aforesaid facts and circumstances Shri K.S. Sivaraman has passed the impugned order as a Deputy Collector of Customs or as Addl. Collector of Customs.

5. Perusal of order No. 21/87 published in the Gazette of India shows that it is not an order appointing Shri K.S. Sivaraman as Addl.

Collector of Customs under Section 4 of the Customs Act. It merely states that, among others, Shri K.S. Sivaraman has assumed charge of the post of Addl. Collector of Customs, Delhi. Prima facie, there must be some other order appointing the officer as Add). Collector of Customs, which has not been brought on record.

6. Assuming the aforesaid order published in the Gazette of India dated 10-10- 1987 as an order appointing the officer as Addl. Collector of Customs, it shows that Shri K.S. Sivaraman is an officer of the grade of Deputy Collector of Customs and Central Excise. This means his appointment as Deputy Collector of Customs still subsists. By virtue of this grade he can exercise the powers either of Deputy Collector of Customs or of Deputy Collector of Central Excise or of both, as the case may be, wherever he is posted as such under the charge of a Collector of Customs or Collector of Central Excise. Learned Consultant, however, asserts that since he has assumed charge of the post of Addl. Collector of Customs, Delhi w.e.f. 8-12-1986, the impugned order should be deemed to have been passed by Shri Sivaraman as an Addl. Collector of Customs and not as Deputy Collector of Customs, even though it has been wrongly mentioned as 'Deputy Collector of Customs' in the impugned order. In view of this position, the learned Consultant states that the appeal has been correctly filed before the Tribunal because under the Customs Act an order passed by the Addl. Collector of Customs is deemed to be an order passed by the Collector of Customs by virtue of the definition of 'Collector of Customs' under Section 2(8) of the Customs Act, 1962.

7. Learned SDR during the course of hearing pointed out a letter dated 11-3-1988 from the said Shri K.S. Sivaraman in which it has been stated that "when I adjudicated the case No. 4830/87 dated 9-11-1987 (the instant case), I was only Addl. Collector of Customs. On the relevant date I was not notified as Deputy Collector of Customs also". A copy of the said letter has been placed on record of the Tribunal by the learned SDR.Question that arises for consideration now is whether Shri K.S.Sivaraman in view of the foregoing material was acting in dual capacity as Addl. Collector of Customs and as Deputy Collector of Customs or was he acting only in a single capacity as Addl. Collector of Customs w.e.f. 8-12-1986. If he is taken to act as discharging two capacities mentioned above, then the impugned order which indicates to have been passed by a Deputy Collector of Customs, can be appealed against only to the Collector (Appeals).

8. It is admitted on both sides that there is no grade of Addl.

Collector of Customs at present in the Indian Customs and Central Excise service. It is only that some of the Deputy Collectors are designated as Addl. Collectors in some of the Collectorates to take over the burden of adjudication work of the Collector of Customs because statutorily Addl. Collector of Customs has been treated on par with Collector of Customs. Assumption of charge by officer of the grade of Deputy Collector of Customs as Addl. Collector of Customs would not mean that the original appointment of the officer concerned in the grade of Deputy Collector of Customs would cease to exist with the order asking him to assume charge as Addl. Collector of Customs. If this be so it would mean (i) reduction from statutory opportunity of two appeals to one appeal only because the order has been passed by an Addl. Collector instead of a Deputy Collector, (ii) exposing the persons concerned to the risk of imposition of a higher penalty by Addl. Collector in terms of order demarcating the adjudication powers.

Incidentally, it would also mean direct appeal to the Tribunal resulting into increase in work of relatively petty nature. This cannot be the intention of the order appointing officers of the grade of Deputy Collector as Addl. Collector.

9. In order to obviate the foregoing adverse results flowing from the interpretation placed upon the order dated 10-10-1987 published in the Gazette of India, it would be desirable to assume two jurisdictions of the officer concerned. Cases fit to be decided by an Addl. Collector of Customs in terms of the order demarcating the adjudication powers, should be deemed to have been decided by him as Addl. Collector. Cases fit to be decided by Deputy Collector should be deemed to be decided by him as Deputy Collector.

10. Learned Consultant, however, relies on two decisions of Single Members of the Tribunal, namely :- (1) Order No. C/Misc./10/1989-NRB in C/COD/918/87-NRB in appeal No. 3686/87 in Tarlochan Singh v. Collector of Customs, New Delhi andNo. C/3534/87-NRB. Amin Abdul Gani v. Collector of Customs 11. We have gone through these orders relied upon by the learned Consultant but we find that the question of dual capacity exercisable by a person and the effect thereof in the absence of such dual capacity, as has been set out above, was not brought to the notice of the learned Members of the Tribunal. They appear to have gone by the letter of Shri K.S. Sivaraman that on the date of adjudication in those cases he was notified as Addl. Collector of Customs and he was not notified as a Deputy Collector of Customs also. We feel that the question of notification of the officer concerned as Deputy Collector of Customs did not arise since he continued to be in the grade of Deputy Collector of Customs and Central Excise, as is apparent from order No. 21/87 published in the Gazette of India, October 10,1987.

12. Learned Consultant has drawn attention to Section 5(2) of the Customs Act which enables 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 subordinate to the former. This plea is also not tenable. It cannot be held that a Deputy Collector of Customs is subordinate to the Addl. Collector of Customs in the grade of Deputy Collector of Customs.

13. In view of the foregoing discussion, we are of the view that the impugned order has been passed by the Deputy Collector of Customs as shown therein and therefore, the appeal thereof would lie to the Collector of Customs (Appeals). Accordingly, the appeal is returned as non-maintainable.

14. I have had the advantage of reading the judgment prepared by my learned Brother Shri P.C. Jain, Member (Technical) and feel unable to agree with him.

15. In the instant case at the time of hearing a doubt was felt as to whether Shri K.S. Sivaraman who had passed the impugned Adjudication Order, had passed it as Deputy Collector or Additional Collector of Customs because in the impugned order the words "Dy: Additional" written in hand were appearing in the printed column after the words "passed by Shri" and before the words "Collector/Customs". Accordingly the Department was asked to clarify the position. In pursuance thereof the learned SDR submitted a letter dated 11th March, 1988 written and signed by the said officer Shri K.S. Sivaraman who had adjudicated the case informing her that when he adjudicated the case under reference he was only Additional Collector of Customs and on the relevant date i.e.

to say on 9-11-1987 when he adjudicated the case he was not notified as Deputy Collector of Customs also.

16. In the said premises it was argued by Shri N. Singh, the learned Counsel for the appellant that the impugned order was passed by Shri K.S. Sivaraman in the capacity of Additional Collector and therefore the appeal lies to the Tribunal. Shri Singh emphasised that since this position is admitted to the Department there is no scope/or need for the Tribunal for further examining the matter on this count and the Tribunal should decide the appeal on merits. In a nutshell his submission was that since the fact that the impugned order was passed by Shri K.S. Sivaraman in the capacity of Additional Collector is not disputed by the Department and is also admitted to the said officer Shri K.S. Sivaraman who had adjudicated the case, the Tribunal should proceed to decide the appeal on merits. To substantiate his contention further he submitted that earlier this question was also raised before the Tribunal in the case of Shri Tarlochan Singh v. Collector of Customs, New Delhi (Appeal No. 3686/87) and Amin Abdul Gani v.Collector of Customs [Appeal No. C/3534/87-NRB -1988 (38) E.L.T. 46 (Tribunal)] and ultimately it was held by the Tribunal that Shri K.S.Sivaraman was the Additional Collector at the relevant time (See Order No. C/Misc./10/1988-NRB dated 11-1-1988 and Order No. A/157/88/NRB dated 8-6-1988 respectively).

17. I have considered the submissions. In para 7 of his judgment my learned Brother Shri P.C. Jain has posed a question as to whether Shri K.S. Sivaraman "was acting in dual capacity as Additional Collector of Customs and as Deputy Collector of Customs or was he acting only in a single capacity as Additional Collector of Customs." In order to decide this question my learned Brother considered various letters issued by the Central Board of Excise and Customs and also certain orders published in the Gazette and after so considering concluded that the impugned order was passed by the said officer Shri K.S. Sivaraman in the capacity of Deputy Collector of Customs and therefore the instant appeal would lie to the Collector of Customs (Appeals) and not to the Tribunal. While concluding so my learned Brother has ignored the said Orders passed by the Tribunal observing as follows - "11. We have gone through these orders relied upon by the learned Consultant but we find that the question of dual capacity exercisable by a person and the effect thereof in the absence of such dual capacity, as has been set out above, was not brought to the notice of the learned Members of the Tribunal. They appear to have gone by the letter of Shri K.S. Sivaraman that on the date of adjudication in those cases he was notified as Addl. Collector of Customs and he was not notified as a Deputy Collector of Customs also. We feel that the question of notification of the officer concerned as Deputy Collector of Customs did not arise since he continued to be in the grade of Deputy Collector of Customs and Central Excise, as is apparent from Order No. 21/87 published in the Gazette of India, October 10,1987." 18. From the above it is clear that for the purpose of ignoring the alleged judgments passed by the Tribunal in the case of Shri Tarlochan Singh, (supra) and Amin Abdul Gani, (supra), my learned Brother stressed that since Shri K.S. Sivaraman continued to be in the grade of Deputy Collector of Customs and Central Excise according to Order No.21/87 published in the Gazette of India dated October 10,1987 there was no necessity for notifying Shri R.S. Sivaraman as a Deputy Collector of Customs also. With profound respect I do not agree with him. In these summary proceedings like the present one before us we are-concerned only with the appointment of Shri K.S. Sivaraman and not with his grade. Nor we are concerned with the question as to whether Shri K.S.Sivaraman was rightly appointed as Additional Collector of Customs w.e.f. 8-12-1986 vide Gazette Notification No. 21/87 dated 10-10-1987 or not. In the instant case it is admitted to both the parties that Shri K.S. Sivaraman was appointed as Additional Collector of Customs, Delhi w.e.f. 8-12-1986. This fact has also not been disputed by my learned Brother Shri P.C. Jain in his judgment. Once the factum of appointment of Shri K.S. Sivaraman as Additional Collector of Customs, Delhi w.e.f. 8-12-1986 vide the said Gazette Notification No. 21/87 dated 10-10-1987 is admitted to both the parties coupled with the fact that Shri K.S. Sivaraman has also stated in his letter dated 11-3-1988 referred to above that he had adjudicated the case as Additional Collector, I think that it would not be proper for me to hold that though there was no notification appointing Shri K.S. Sivaraman as Deputy Collector of Customs, still he decided the case as Deputy Collector because he continued to be in the grade of Deputy Collector of Customs and Central Excise as observed by my learned Brother Shri P.C. Jain. In other words when there is no challenge by either or both the parties that Shri K.S. Sivaraman did not adjudicate the present case as Additional Collector, it would not be proper nor permissible for the Tribunal to go further to hold that even though he was not notified as Deputy Collector of Customs he continued to be so since he was in the grade of Deputy Collector of Customs, particularly when Shri K.S. Sivaraman is not before us.

19. In view of the above the judgments rendered by this Tribunal in the case of Shri Tarlochan Singh, (supra) and Amin Abdul Gani, (supra) apply on all fours to the present case and cannot be ignored as done by my learned Brother. In the result I hold that the appeal lies to the Tribunal.

Since there is a difference of opinion between us the following question requires to be decided by another Member in terms of sub-sec.

(5) of Sec. 12-D of the Customs Act, 1962- "Whether in the facts and circumstances of the case the present appeal is maintainable." Let the papers be placed before the Hon'ble Sr. Vice-President for referring the aforesaid question according to sub-sec. (5) of Sec.

129-D of the Customs Act, 1962.

20. Senior Vice-President referred this appeal to me for deciding the point of difference that has arisen, so as to arrive at a majority decision by the Tribunal. Accordingly, I heard both the parties today and proceed to pass the following order.

21. Shri N. Singh, the learned Consultant submitted that there cannot be any factual dispute in this matter as the appellants have conclusively established that Shri K.S. Sivaraman took charge as Additional Collector of Customs and assumed charge on 8-12-1986. He submitted that he produced before the Bench the Gazette of India dated October 10,1987 wherein the fact of posting of Shri Sivaraman as Additional Collector was duly published. He further submitted that the Tribunal has issued a number of orders holding that Shri Sivaraman passed the orders as Additional Collector. He also submitted that apart from these facts it is not the pay of the officer but the designation he has been conferred on that matters. The appointment by the President of India makes all other considerations irrelevant.

22. Ms. Renuka Mann, the learned SDR making a factual statement submitted that she wrote to Shri Sivaraman a letter enquiring about the position and Shri Sivaraman in his letter dated 11-3-1988 confirmed that he was the Additional Collector of Customs as on 9-11-1987. The officer passed the order impugned before us in this appeal, on 12-11-1987.

23. The order passed by Shri P.C. Jain, the learned Technical Member incorporates the Gazette Notification containing the Gazette of India October 10, 1987. It clearly mentions that Shri Sivaraman was given the post of Additional Collector of Customs and assumed charge on 8-12-1986. Shri Sivaraman has himself confirmed the position.

24. I have also taken note of the various judgments of the Tribunal referred to by Shri G.P. Agarwal, the learned Judicial Member and yet another order passed in appeal No. C/3840/88-NRB by a Single Member holding that Shri Sivaraman was posted as Additional Collector and passed the adjudication order in that capacity only.

25. In this view I am of the opinion that both on facts and in law, Shri Sivaraman was an Additional Collector at the appropriate time. I, therefore, agree with the order passed by the learned Judicial Member.

26. In view of the opinion on the point of difference referred to the third Member, the majority view is that the appeal before the Tribunal is maintainable. The Registry is, therefore, directed to list the appeal for regular hearing.