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P.K. Hsmatsingka and Co. Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1987)(29)ELT714TriDel
AppellantP.K. Hsmatsingka and Co.
RespondentCollector of Customs
Excerpt:
.....of customs, refund department, bombay and beg to submit as under]-"; (i) nevertheless, one single appeal alone was filed and apparently the requirement of filing as many appeals as there were adjudication orders, was overlooked; (j) on rejection of the claims by the appellate. collector, by his order dated 3-6-1982, the appellant preferred once again a single appeal on 13-12-1982, before the tribunal - registered as cd/sb/t/appeal no. 67/82-a. in para (5) of the memorandum of appeal, the appellant made specific mention of the "orders-in-original .... (s/8/704/80r and four others)". the appellant .was thus perfectly aware right through that there were five different orders-in-original - although textually identical.3. it was in the backdrop of these incontrovertible facts that we.....
Judgment:
1. This is an Application for clarification of our Order dated 14-8-1984, requiring the Appellant in Appeal No. 67/82, to file as many Appeals in the Tribunal "as there are Orders-in-Original".

(a) the Appellant preferred five claims of refund alleged to arise consequent upon assessment of the goods imported under three different Bills of Entry of diverse dates between 18-5-1979 and 1-6-1979; (b) the claims were adjudicated upon and rejected mostly as time-barred in five different Orders-in-Original (S/8-704/80R and four others) on or about 18-1-1980; (c) in Appeals, the Appellate Collector directed the Assistant Collector to adjudicate the claims on merits (Order No. S/49-201 & 203/80R, dated 26-2-1980); (d) the Appellant resubmitted all the five claims to the Assistant Collector; they were once again rejected on the ground that the discounts were of a special nature and not admissible; (e) in Appeals, the aforesaid Orders were set aside and the Appellant once again "approached the Assistant Collector of Customs for refund of all the claims .... Thus, all the claims were again turned down and fresh Orders-in-Original against all the refund applications resubmitted by the Appellants, were accordingly passed". (Memorandum of the Grounds of Appeal before the Tribunal).

(f) for a fact, the five separate claims were registered separately and in the common adjudication order, communicated to the Appellant on 17-11-1980, the five Order Nos. [S/8-704/80R, S/8-705/80R, S8-706/80R, S8-940/80R, and S8-941/80R] were specified at the top; (g) this would, necessarily, imply that each of the five claims was disposed of by an order numbered separately, although the text of the Order in each one of them is the same; (h) this was how the Appellant also understood to be the case. In the Memorandum of Appeal to the Appellate Collector of Customs dated 12-2-1981, it was categoricaly stated that "We beg to submit our appeal against an order No. S/8/704/80R, S/8/705/80R, S/8/706/80R, S/8/940/80R, and S/8/941/80R, dated 17-11-1980, received by us on 24-11-1980 from the Assistant Collector of Customs, Refund Department, Bombay and beg to submit as under]-"; (i) nevertheless, one single Appeal alone was filed and apparently the requirement of filing as many appeals as there were adjudication orders, was overlooked; (j) on rejection of the claims by the Appellate. Collector, by his order dated 3-6-1982, the Appellant preferred once again a single Appeal on 13-12-1982, before the Tribunal - registered as CD/SB/T/Appeal No. 67/82-A. In para (5) of the Memorandum of Appeal, the Appellant made specific mention of the "Orders-in-original ....

(S/8/704/80R and four others)". The Appellant .was thus perfectly aware right through that there were five different Orders-in-original - although textually identical.

3. It was in the backdrop of these incontrovertible facts that we allowed an opportunity to the Appellant to make good the deficiency in the number of Appeals that had, necessarily, to be filed before the Tribunal, if it were desired to contest all or a plurality of the Orders-in-original, notwithstanding that we could have, if we so chose, required the Appellant to restrict the single Appeal filed to one only of the refund claims. For, it is axiomatic in law that there should be as many Appeals as there are original orders, sought to be contested.

Even where two or more claims have been adjudicated together and a common order made, that order is to be read as an order separately in each one of the claims and as many Appeals filed as there are orders which are desired to be contested. In the Civil Procedure Code, for example, it is provided in S.96 that an Appeal shall be from every decree passed. A "decree" is the formal expression of an adjudication which so far as the Court expressing it, conclusively, determines the right of the parties with regard to all or any of the matters in controversy in the suit [Section 2(2) of the C.P.C.]. Where a plurality of suits are disposed of by a common judgment, there are as many separate decrees drawn as there are suits disposed of and, necessarily, Appeals have to be filed against each decree separately, failing which such of the decrees not appealed against become final. An Order-in-Original i.e., in adjudication, is something like a decree. If not appealed against, it becomes final. Likewise, if a plurality of Appeals are disposed -of by a common order, that single order is relatable to each one of them and becomes final unless second Appeals are filed.

4. One would have thought this to be too well known to require to be stated. Still-, for some reason or other, the practice of filing a single Appeal against a common order disposing of a number of separate claims or Appeals has grown in litigation before departmental quasi-judicial authorities. It is to ensure that no prejudice is caused to the litigant on account of adherence to the practice, albeit wrong, and at the same time enforce he filing of the requisite number of separate Appeals that we had been, consistently, affording an opportunity to the various Appellants before us to make good the deficiency with Applications for condonation of delay in filing them belatedly.

5. Accordingly it was, that on 14-8-1984, we made the Order which, instead of being complied with readily, is required to be clarified.

6. In the instant Application, it was stated that all five claims were disposed of by one Single Order-in-original and, consequently, it is sought to be inferred that, even in terms of our Order, one Appeal only had to be filed and not five separate Appeals as was, according to the Applicant, erroneously presumed by the Tribunal in its Order dated 14-8-1984.

7. The said statement made in the Application could not have been made when to the Applicant's knowledge and belief, as well as, for a fact, the common Order-in-original was, indeed, as many orders as there were refund it was a self-serving statement, if it is not one intended to mislead; contrary to the facts, and the Appellant's own understanding of the facts. It was, obviously, a ruse to persuade us to believe that our earlier order was wrong and failing that, atleast to have the Appeal itself, fixed for 26-10-1984, adjourned to another date.

8. We, accordingly, see no merits in the Application and hold that it deserves to be dismissed.


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