1. The appellant (Embarkation Headquarters) filed Revision Petition (referred hereafter as R.A) before the Government on 30th April, 1981 against the order No. S/49-143/80GS dated 18th of November, 1980 passed by the Appellate Collector of Customs, Bombay which was in relation to the order No. S/3-83/80GS dated 1st of July, 1980 passed by the Assistant Collector of Customs, Government Stores Section relating to Bill of Entry No. 975/ dated 12th of November, 1979. The R.A. was transferred to the Tribunal by virtue of Section 131B of the Customs Act as an appeal and accordingly is being disposed of as such.
2. The petitioner claimed refund under Notification No. 211/212/77-Cus.
on the ground that the imported goods were fabrics used in the manufacture of MIG Air-Craft. The Assistant Collector rejected the claim firstly on the ground that no invoice, contract etc. for the verification were produced and secondly that the continuity Bond register maintained by the Customs Department did not show any entry in relation to continuity bond for the particular consignment. He accordingly held that the exemption benefits of notification 211/77 were not available. Without mentioning anything further, the refund claim was rejected.
3. The petitioner in its first appeal before the Appellate Collector of Customs (Appeal Unit) Bombay in addition to the primary ground that exemption was available under notification No. 211/212 of 1977 alternatively contended that assessment of goods should be done under Notification No. 196 of 1976 on the actual C.I.F. value. The Appellate Collector of Customs simply did not involve himself with the alternative contention at all and confirmed the rejection order of the Assistant Collector for the same reasons as had been adopted by him.
4. Though hearing notice was issued to the petitioner on 17th of December, 1982, when the appeal was called on for hearing two gentlemen, namely, Shri A.G. Todkar, Dy. Personnel Manager and Shri PJR. Bandyopadhyay, Dy. Stores Manager of Hindustan Aeronautics Ltd., Nasik Division appeared and described themselves as authorised representatives. For the Revenue Shri M. Chatterjee was present. The Bench invited the attention of the two said gentlemen of the Hindustan Aeronautics to Section 146A of the Customs Act and enquired of them as to how they could be authorised representatives of the Embarkation Headquarters. There was no satisfactory answer to the query. Since the persons appearing were neither employees of the petitioner nor fall in the category of representatives as defined under Section 146A, we declined their request for personal hearing. At this stage we consider it necessary to bring in focus the provisions of Section 146A(1) and (2) of the Act which are relevant for the purpose as far as the appearance of the two gentlemen is concerned: (1) Any person who is entitled or required to appear before an officer of customs or the Appellate Tribunal in connection with any proceedings under this Act, otherwise than when required under Section 108 to attend personally for examination on oath or affirmation, may, subject to the other provisions of this section, appear by an authorised representative.
(2) For the purposes of this section, "authorised representative" means a person authorised by the person referred to in Sub-section (1) to appear on his behalf, being- (c) any legal practitioner who is entitled to practise in any Civil Court in India; or (d) any person who has acquired such qualifications as the Central Government may specify by rules made in this behalf.
5. We informed ourselves from the particulars of appeal filed before the Appellate Collector of Customs that the importer's contention was two-fold and alternative in character. To project this aspect we reproduce the following portion of the petition: The stores imported vide item No. 2 of the BE is Fabric which is used as Raw material for the manufacture of MIG A/C. As such exempted from duty vide Notification No. 211/212 of 77. The items given in the schedule under Notification No. 211/212 are prefixed by phrase 'such as' which gives scope for adding such items which conform to Aircraft or Aerospace specification. In this effect certificate issued by the Director of Technical Development and Production (Air), Ministry of Defence is attached herewith. Amount may be debited against the continuity Bond maintained by you.
However it is also stated that, if you do not want to exempt from the duty assess the same under Notification No. 196-Cus/76 on the actual CIF value given in the certificate and refund the excess amount of duty recovered on the value declared at the time of finalisation of the BE. In support of the claim BE, Valuation certificate, Air certificate, 2 copies of shipping specifications along with sample (Thread & Fabric), GEC No. 6-15 and a copy of order-in-original are forwarded herewith.
6. Since the Appellate Collector simply did not go into the question of assessment under Notification No. 196, we consider it in the fitness of the things that his order be vacated with the directions to pass fresh order on all the points within four months of the receipt of this judgement.
8. Before parting with the case we tike to observe that Government agencies like the one before us should not be found lacking in the matter of procedure and care in making arrangements for representation.