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Jyotsna Rani Ghosh Vs. Collector of Customs and Central - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Reported in(1984)(18)ELT594Tri(Kol.)kata
AppellantJyotsna Rani Ghosh
RespondentCollector of Customs and Central
Excerpt:
.....appellate collector of customs, calcutta. after coming into existence of the tribunal, the said revision application was transferred to the tribunal under section131-b(2) of the customs act, 1962 and is being disposed of as an appeal.2. shri kaustubh bhusan basu, the learned advocate has appeared on behalf of the appellant. before the commencement of the proceedings, i had brought it to the notice of the ld. advocate that the appellant has not fulfilled the requirements of the registry's letter dated 28th jul, 1983 desiring the appellant to file four sets of the following documents duly indexed under the provisions of the customs, excise & gold control appellate tribunal (procedure) rules, 1982: (i) copies of revision petition; (ii) copies of order appealed against; (iii) copies.....
Judgment:
1. Smt. Jyotsna Rani Ghosh has filed a revision petition to the Addl.

Joint Secretar, Govt. of India, Ministry of Finance, Deptt. of Revenue, New Delhi being aggrieved from Order No. 2782/79 dated 13-11-1979 passed by the Appellate Collector of Customs, Calcutta. After coming into existence of the Tribunal, the said revision application was transferred to the Tribunal under Section131-B(2) of the Customs Act, 1962 and is being disposed of as an appeal.

2. Shri Kaustubh bhusan Basu, the learned Advocate has appeared on behalf of the appellant. Before the commencement of the proceedings, I had brought it to the notice of the ld. Advocate that the appellant has not fulfilled the requirements of the Registry's letter dated 28th Jul, 1983 desiring the appellant to file four sets of the following documents duly indexed under the provisions of the Customs, Excise & Gold Control Appellate Tribunal (Procedure) Rules, 1982: (i) Copies of Revision Petition; (ii) copies of Order appealed against; (iii) copies of the original Order passed; (v) Declaration Form-Autorised Representative/Vakalatname--should be affixed alongwith a Court Fee stamps of Rs. 5/-.

Shri Basu has submitted that he had objected to the above requirements of the Registry and had written a letter to this effect to the Registry. I had brought it to the notice of Shri Basu that there is no such letter in the file and had also requested him that if he had filed such a letter he should produce a copy of the same and the date of filing but he was unable to produce the same in the court. He has pleaded that the appellant had filed the revision application under old Section 131 ibid before the formation of the Tribunal and as such the appellant is under no legal obligation to file four sets of documents required by the Registry. He has further pleaded that the revision application was transferred to the Tribunal under Section 131B(2) ibid and under the old Section 131 there was no requirements as to the filing of any papers and has laid emphasis on the wordings of Section 131 B(2) : "and which is so pending shall stand transferred on that day to the Appellate Tribunal and the Appellate Tribunal may proceed with such proceeding or matter from the stage at which it was on that day as if such proceeding or matter were an appeal filed before it :" He has pleaded that this court cannot ask the appellant to file the aforesaid documents and has requested this court to summon the records from the lower authorities.

3. In reply, Shri A.K. Sarkar, the learned Sr. D.R., has pleaded that the appellant has to file the documents as required under the provisions of Customs, Excise & Gold Control Appellate Tribunal (Procedure) Rules, 1982.

5. During the course of arguments, I had brought it to the notice of the learned Advocate that this court had passed a judgment on this issue and he has stated that he does not remember the same. My learned brother, Shri A.K. Bandyopadhyay had passed an order in Appeal No.CD(T) CAL-57/79, Order No. 326/CAL/83-1961 dated 31st Aug. '83 in the case of Shri Sasanka Sankar Dey, Calcutta v. Collector of Central Excise & Customs, West Bengal, Calcutta. Incidentally, Shri K.B. Basu, the ld. Advocate who has appeared before me in this case, had represented the same case before my learned brother. Para 3 of the said order is reproduced as under : "3. So far as the preliminary point of furnishing four sets of revision petition and other documents, the matter is decided against the appellant as the point made by the Jr. D.R. represents the correct position in law in this regard. When a revision application becomes an 'appeal' before the Tribunal, it has to conform to the requirements of the Tribunal as formulated in the Appellate Tribunal (Procedure) Rules, 1982. The system of dealing with revision applications and appeals as prevalent earlier has been done away with the constitution of the Customs, Excise & Gold Control Appellate Tribunal from 10-10-1983 by an amendment of the Customs Act, 1962. A11 revision applications pending before the Government of India and appeals to the Board so pending are required to be transferred to the Tribunal by virtue of insertion of Section 136 B(1) & (2.) therein. In view of the change of the system and the provision for presentation of the department's case by the Departmental Representative, it is absolutely essential that he gets a copy of the 'appeal' made before the Tribunal. Similarly, each Member of the Tribunal has to get a copy of the 'appeal'. The need for furnishing four copies to the Tribunal in the changed context is obvious. The Appellate Tribunal (Procedure) Rules, 1982 has, therefore, provided for furnishing four copies of appeals. The point made by the Advocate, Shri Basu is, therefore, over-ruled." The revision application filed on 18th Feb. '80 was signed by the learned : Advocate on behalf of the appellant and, was accompanied by a copy of the order passed by the Appellate Collector (unsigned and unattested bearing judicial stamp worth .50p) and a Vakalatnama. The adjudication proceedings were against Shri Gourlal Ghosh and the revision application was filed by Smt. Jyotsna Rani Ghosh in her capacity as legal representative of the deceased. I would like to observe that the filing of four sets of papers desired by the Registry does not infringe or take away the right of the appellant in any way.

Section 131 before the amendment, vested the appellant with the right of filing of revision application. The same is reproduced as under : "131. Revision by Central Government. The Central Government may, on the application of any person aggrieved by- (b) any order passed under Section 130 otherwise than on the application of any aggrieved person, or (c) any order passed on the application of any aggrieved person under Section 130 where the order is of the nature referred to in either of the provisos to Sub-section (1) of that section,anual or modify such order.

(2) An application under Sub-section (1) shall be made within six months from the date of the communication to the applicant of the order against which the application is being made : Provided that the Central Government may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the aforesaid period of six months, allow it to be presented within a further period of six months.

2(A) An application under Sub-section (1) shall be accompanied by a fee of one hundred and twenty-five rupees.

(3) The Central Government may of its own motion annul or modify any order passed under Section 128 or Section 130.

(4) No order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value shall be passed under this section- (a) in any case in which an order passed under Section 128 or Section 130 has enhanced any penalty or fine in lieu of confiscation or has confiscated goods of greater value ; and (b) in any other case, unless the person affected by the proposed order has been given notice to show cause against it, within one year from the date of the order sought to be annulled or modified.

(5) Where the Central Government is of opinion that any duty of Customs has not been levied or has been short-levied, no order levying or enhancing the duty shall be made under this section, unless the person affected by the proposed order is given notice to show cause against it within the time-limit specified in Section 28." The Finance (2) Act 1980 (Act No. 44 of 1980) had inserted Chapter XV relating to appeals with effect from 11th Oct. 1982 and the revision application filed before the Government of India were transferred to the Tribunal under Section 131-B(2) ibid. Section 131-B(1) & (2) is reproduced as under : "131B. Transfer of certain pending proceedings and transitional provisions. (1) Every appeal which is pending immediately before the appointed day before the Board under Section 128 as it stood immediately before that day, and any matter arising out of or connected with such appeal and which is so pending shall stand transferred on that day to the Appellate Tribunal and the Appellate Tribunal may proceed with such appeal or matter from the stage at which it was on that day : Provided that the appellant may demand that before proceeding further with that appeal or matter, he may be re-heard.

(2) Every proceeding which is pending immediately before the appointed day before the Central Government under Section 131, as it stood immediately before that day, and any matter arising out of or connected with such proceedings and which is so pending shall stand transferred on that day to the Appellate Tribunal and the Appellate Tribunal may proceed with such proceeding or matter from the stage at which it was on that day as if such proceeding or matter were an appeal filed before it: Provided that if any such proceeding or matter relates to an order where- (a) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under Section 125 ; or (b) in any disputed case other than a case where the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved ; or (c) the amount of fine or penalty determined by such order, does not exceed ten thousand rupees, such proceeding or matter shall continue to be dealt with by the Central Government as if the said Section 131 had not been substituted : Provided further that the applicant or the other party may make a demand to the Appellate Tribunal that before proceeding further with that proceeding or matter, he may be re-heard." As per records it appears that this revision application before coming into existence of the Tribunal, was not fixed for hearing by the Central Government and as such there was no commencement of hearing and, therefore, this revision petition was transferred to the Tribunal in its pending position. Deletion of old Section 131 has not taken away any right of the appellant, rather the insertion of Chapter XV in the Customs Act has enhanced the rights of the appellant. Prior to the insertion of Chapter XV there was no provision as to the filing of reference application to the High Court or to the Supreme Court under Section 130 to 130 E of the Customs Act, 1962. The Supreme Court had observed in the case of M/s. Hoosein Kasam Dada {India) Ltd. v. The State of Madhya Pradesh reported in AIR 1953 S.C. 221 that - "A right of appeal is not merely a matter of procedure. It is a matter of substantive right. This right of appeal from the decision of an inferior Tribunal to Supreme Tribunal becomes vested in a party when proceedings are first initiated in and before a decision is given by the inferior court." The Finance Act (No. 2) being Act No. 44 of 1980 had inserted new sections and the appeal lay, under old Section 128, to the Board where the order was passed by the Collector of Customs and |o the Appellate Collector where the order was passed by any officer of Customs lower in rank than a Collector of Customs and after the insertion of Chapter XV of Finance Act (No. 2) 1980 the appeal lies to the Collector (Appeals) where the order has been passed by an officer of Customs lower in rank than a Collector of Customs. Where an order has been passed by a Collector of Customs or Collector (Appeals) or Appellate Collector or Board, the appeal lies to the Appellate Tribunal under Section 129A of the Customs Act, 1962. A Larger Bench of the Tribunal, New Delhi, while disposing of the references in the case of Amin Chand Payarelal v.Collector of Central Excise, Chandigarh reported in 1984 (16) E.L.T.126 (Tribunal), had observed in Para 16 as under : "16. These observations aptly apply to the present case. In accordance with them, the right to have the appeal heard by the Central Board of Excise and Customs has been repealed and in its place a new right has been given for appeal to the Tribunal. Since this is not unconstitutional in any way and since this has been done clearly and expressly by the amending Act, the appeals have to be heard only by the Tribunal and that too in accordance with the provisions of the amended Act and not under the provisions of the old Act." Maxwell on The Interpretation of Statutes (Twelfth Edition) has written on page 222 that: "the presumption against retrospective construction has no application to enactments which affect only the procedure and practice of the courts. No person has a vested right in any course of procedure, (Republic of Costa Rica v. Erlanger (1874) 3 Ch. D. 62, per Mellish J.) but only the right of prosecution or defence in the manner prescribed for the time being, by or for the court in which he sues, and if an Act of Parliament alters that mode of procedure, he can only proceed according to the altered mode.

(Wright v. Hale (1860) 39 LJ. Ex. 40, per Wilde B.) "Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be. [Gardner v. Lucas (1878) 3 App. Cas. 582, per Lord Blackburn at p. 603.]" The Hon'ble Supreme Court had decided in a number of appeals that if pending an appeal or reference, retrospective legislation is enacted by the appropriate legislative authority, the deciding Tribunal must give effect to it and give its decision in accordance with the law in operation at the time of its decision, (Kamakshya Narain Singh v. CIT- 15 1TR 311, 317 (FC); C1T v. Ram-gopal Mills Ltd.-41 1TR 280 (S.C.): State of UP v. Syed Mohammad- 41 1TR 737 (S.C.) ; CIT v. Straw Products Ltd.-60 ITR 156 (S.C.). Bennett Coleman & Co. Ltd. v. CIT 49 ITR 264, cited from Kanga and Palkhivala's The Law and Practice of Income Tax, 7th Edition, Vol. 1, page 6 and any amendment of the Act, though effected after the close of the assessment year but before the assessment is made, would still be given retrospective effect and would apply to the assessment, if the amendment is purely procedural and affects the machinery for collecting the tax rather than the tax itself. (CIT v. Bagchi & Co. 20 ITR 33 ; Kudilal Seksaria v. CIT, 54 ITR 653 cited from Kanga and Palkhivala's above book at page 84).

Rule 8 of the Customs, Excise & Gold Control Appellate Tribunal (Procedure) Rules, 1982 provides that every memorandum of appeal shall be filed in quadruplicate and shall be accompanied by four copies (at least one copy of which shall be a certified copy) of the order appealed against and where such order is an order passed in appeal or revision, four copies (at least one copy of which shall be a certified copy) also of the order of the adjudicating authority.

6. In view of my aforesaid discussions, I hold that filing of papers in conformity with the Custums, Excise & Gold Control Appellate Tribunal (Procedure) Rules, 1982 is obligatory on the part of the appellant and accordingly, the appellant is directed to file the same.

7. During the course of the argument, the learned Advocate had pleaded that this court should summon the records from the lower authorities and I had advised the appellant to approach the lower authorities for getting the copies of the same and if the lower authorities do not accede to his request, he may approach this court for necessary directions as to the production of records.


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