Baboo Lal Jain, J. - (1.) This is an application under Article 226 of the Constitution of India. An order was passed by the Assistant Collector of Customs, Calcutta on the 19th June, 1987, by which the said Assistant Collector of Customs rejected the claim of the petitioner for refund of customs duty of a sum of Rs. 88,821.16 P. for survey shortage of 9246 kgs. Against the consignment in question. The petitioner went in appeal against the said order of the Collector of Customs - Mr. C.K. Gopalakrishnan, Collector of Customs (Appeals) made an order bearing No. Cal. Cus. 1955/87, dated 18-9-1987. By the said order the said Collector of Customs (Appeals) observed as follows : "Considering the fact that a protracted correspondence between the department and the claimant had ensued, I would not like to remand the matter with a broad direction but would expect the Customs House to collect the original records and establish that there exists a case for granting refund or not. The Customs House may now be asked to do the needful in this regard."
(2.) It is clear from the said order of the Collector (Appeals) that the said Collector of Customs (Appeals) did not remand the matter. It is also clear that the said Collector of Customs (Appeals). He expected "the Customs House to collect the original records and establish that there exists a case for grant of refund or not". He also directed that the Customs House to do the needful in this regard. Neither of the parties are challenging the above order. It has been submitted on behalf of the petitioner that the effect of the said order is that he has won in the appeal before the Collector of Customs and as per the said appellate order he is entitled to the refund of the money. The petitioner has relied on the observations in the said order where it has been observed by the Appellate Authority as follows :- "In the event of such an information not available from the file/bill of entry, this could be ascertained from the importer himself and in the absence of any material to the contrary to the position, his deposition may have to be admitted."
(3.) Simply because the Appellate Authority has observed that the deposition of the petitioner may have to be admitted does not mean that it has already been admitted or that any order has been passed in his favour. The order directs certain things to be done. The learned Advocate appearing for the Customs does not contend that the appeal has been finally disposed of. However, the petitioner wants to contend that the appeal has been, finally disposed of. The form in which the order has been passed gives an impression as if the appeal has been disposed of. It is for the petitioner to decide his future course of action as to whether he wants to apply before the said Appellate Authority for further directions if the matter has not been finally disposed of or for review of the order. The petitioner, if his is so advised, may also go on appeal from the said order. However so far as this court is concerned, I am unable to accept the contention and/or submission of the petitioner that the Appellate Authority had by the said order dated the 18th September, 1987 allowed the appeal of the Appellant or that the Appellate Authority directed refund of the amount in question. In that view of the matter, this application is not maintainable at this stage.;