R. Jayaraman, Member (T) -
(1.) THOUGH only stay applications were listed for hearing after hearing Shri Sonawane, Consultant, fully, we have decided to take up the appeals themselves with his consent. All the three appeals are directed against the orders of the Collector (Appeals) bearing Nos. -
Appeal Nos. Order in appeal appealed against - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1. C/Stay -261/91 Bom 84/90 BP dated 10 -10 -1990 C/10/91 Bom 2. C/Stay -262/91 Bom 82/90 BP dated 9 -10 -1990 C/13/91 Bom 3. C/Stay -263/91 Bom 83/90 BP dated 10 -10 -1990 C/14/91 Bom - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - rejecting the appellants appeals as time -barred without going into the merits.
(2.) SHRI Sonawane, the Consultant, on behalf of the appellants, pleaded that in all the 3 cases, show cause notices were issued by the department answerable to the Addl. Collector but the final orders have been passed by the Dy. Collector. He fairly conceded that no objection was taken at the adjudication stage, when the matter was being adjudicated by the Dy. Collector. However, he pleaded that during the relevant period, some of the Dy. Collectors were designated as Addl. Collectors and the position was not clear. However, when the adjudication orders were received by them, they were found to have been signed by the Dy. Collector and the preamble to the order also indicated that the appeal should be filed before the Collector (Appeals). Presumably because the show -cause notice was made answerable to the Addl. Collector, the appellants chose to file the appeal before the Tribunal and the appeal was filed on 2 -5 -1990, which was within three months from the date of receipt of the order, the date being 22 -2 -1990. The Registry, however, returned the appeals to the applicants stating that the appeals were required to be filed before the Collector (Appeals). On they being returned, within 4 days, they filed the appeal before the Collector (Appeals) on 12 -9 -1990. The thrust of the arguments of Shri Sonaivane is summed up as below:
(i) The show cause notice being made answerable to the Addl. Collector, adjudication should not have been done by the Dy. Collector and hence ab initio, the said order is void. Hence the matter calls for remand, for adjudication before the appropriate authority namely the Addl. Collector.
(ii) The Appellate Tribunal, being the superior in the hierarchy of Customs Officers, being entrusted with hearing the appeals against the order passed by the Collector of Customs, should have transferred the appeal, which was filed before the Appellate Tribunal well in time, instead of being returned.
(iii) As per the decision of the West Regional Bench in the case of VXL India Ltd., reported in 1991 (52) E.L.T. 545 (Tri.), defective appeal is not returnable and memo for rectification is sufficient and limitation is to be computed from the date of initial presentation of the appeal. Based on this decision, he contended that if the appeal has been presented before the Tribunal, instead of before the Collector (Appeals), it should be considered as deficient to that extent and should not have been returned. On a query, he fairly conceded that the delay involved in presenting the appeal before the Collector (Appeals) is beyond three months after the initial period of 3 months allowed. All the same, he pleaded that because of the circumstances narrated above, the appeal should have been entertained by the Collector (Appeals) on merits, instead of treating them as time barred. After hearing Shri Sonawane, we did not call upon Shri Naik, JDR to argue.
(3.) WE find that in this case the undisputed factual position is that the order has been passed by the Dy. Collector and the preamble to the order also advises the appellants to file the appeal before the Collector (Appeals). Hence the appellant should not have presented the appeal before the Appellate Tribunal. As per the provisions of Section 129A of the Customs Act, the Appellate Tribunal can entertain an appeal only in respect of an order passed by the Collector of Customs as an adjudicating authority or an order passed by the Collector (Appeals) under Section 128 or an order passed by the Board or the Appellate Collector. Hence, when the forum for filing the appeal is the Collector (Appeals), the Tribunal does not have the jurisdiction to entertain the appeal against the order passed by the Dy. Collector. Hence the right course of action open was to return the appeal. Unfortunately in this case, the Registry has returned the appeal after a period of 4 months, possibly because of the time lag involved in administrative scrutiny of the number of appeals received. In any case though this may be an extenuating circumstance, since the delay involved in the presentation of the appeal before the Collector (Appeals) is more than six months and the Collector (Appeals) cannot condone the delay for a period more than 3 months beyond the initial period of 3 months as per the statute, he is well justified in rejecting the appeal as time barred. Shri Sonawane's arguments that the Appellate Tribunal is superior in the hierarchy in the customs department also does not appeal to us mainly because of the fact that Section 5, which he referred to, relates to exercise of powers of Officers of Customs, where under an Officer of Customs may exercise the powers and discharge the duties of an Officer who is subordinate to him. We are to clarify the misconception on the part of Shri Sonawane by affirming that the Members of the Tribunal are hot superior officers of the Customs in the hierarchy of the customs department. The Tribunal has been constituted solely for the purpose of hearing the appeals passed by the Officers listed under Section 129A of the Customs Act. They are not entrusted with any functions of the Customs Officers apart from entertaining these appeals. Moreover the Appellate Tribunal is constituted under the provisions of Section 129 of the Customs Act and nowhere in the Customs Act, we could find that either the Members or the Officers of the Tribunal are designated as Officers of Customs in the hierarchy. Hence Shri Sonawane's plea that the Appellate Tribunal are superior in the hierarchy of Customs Dept. has to be dismissed. We have also perused the citations made by the Id. Consultant, which appear to be mis -placed. The case relates to a defective appeal filed before the appropriate Appellate forum, wherein it has been held that such remediable defects can be rectified and the appeal itself need not be returned and the period of limitation is to be computed from the initial date of filing of the appeal. In this case, the appeal had been presented before a forum, which was not competent to decide the appeal. We have to follow the ratio of the decision of the Madras High Court in the case of India Pistons, reported in 1987 (27) E.L.T. 651 , which also was followed by this Bench in Order No. 928 -929/87 in the case of appeals filed by Rallies Machines Ltd. reported in 1988 (38) E.L.T. 160 (Tri.). It has been held by the Madras High Court that if an appeal is filed before the wrong forum, the only option left is to return the appeal to the appellant for presentation before the appropriate forum. This is what has been done by the Registry. If in that process, delay has occurred, it has to be borne by the appellant himself for having chosen to file the appeal before the wrong forum, despite the clear indication given in the preamble, directing him to file the appeal before the Collector (Appeals). There is no provision to exclude the period when wrong forum was approached. The Consultant also referred to the decision of the Supreme Court in the case of Collector, Land Acquisition Anantnag and Anr. v. Katiji and Ors.
reported in 1987 (28) E.L.T. 185 (SC) . Reliance on this judgment is also mis -placed. This is because of the fact that condonation of delay can be considered where the statute makes the enabling provision. In this case, the statute does not make any provision for the Collector (Appeals) to condone the delay beyond the period of 3 months, after the normal period of 3 months. When, statutorily, the Collector (Appeals) does not have any powers, he, being a creature of the statute, cannot over -ride the provisions of the Act and exercise the discretion beyond three months. In view of this, we reject all the three appeals. Since the appeals are dismissed, the stay applications do not survive for consideration and they are treated as disposed of.;