1.The Revision Application filed before the Government of India against the Order-in-Appeal bearing No. S/49-316/76L dated 15-2-1977 passed by the Appellate Collector of Customs, Bombay statutorily stood transferred to the Tribunal for being heard as an appeal.
The appellants imported 'Silica' valued at Rs. 51,040/- and sought clearance against their licence No. 2193360 dated 15-6-1973 for Rs. 1,00,000/-. The clearance was objected to on the ground that the said licence was valid to the extent of Rs. 10,000/- only against Sr. Nos.
11 and 27. The Deputy Collector of Customs in the adjudication proceedings ordered confiscation of the goods valued at Rs. 41,040/- as the goods to that extent was not covered by any licence. He, however, allowed redemption on payment of fine of Rs. 20,000/-. On appeal, the Appellate Collector passed the following order : "Since the legality of the lower order is not really in question I shall not enter into any consideration of that aspect of the matter.
As for the prayer for leniency, considering that in a second list dated 13-9-1973 attached to the same licence there was a specific authorisation granted, for importing silica upto Rs. 10,000/- and "silica" was mentioned a second time in the list under the heading of components, and in the absence of a value indication against the item, it would have to be considered as subject to a value limit of Rs. 5000/- and further considering that the goods have been imported for actual use, the fine imposed in the lower order is reduced to Rs. 15,000/- (Rupees fifteen thousand only) and consequential refund is directed to be granted. The appeal fails otherwise." 3. Being aggrieved by this order, the appellants preferred a Revision Application which is under consideration.
4. The only contention urged by Dr. Kantawala in this appeal is that the Appellate Collector legally could not restrict the value limit to Rs. 5000/-when no such restriction was found in the licence. Dr.
Kantawala further submitted that the appellants were DGTD units and at the relevant time value restriction was not applicable to them though in the case of small scale industries value restriction was applicable.
Shri Kantawala, further, referred to the lists. (The photo copies were filed along with the Revision Application). He particularly referred to the list bearing the date 13th September 1973. He pointed out that against item No. 27 which relates among other things 'Silica', no value restriction had been placed. He, therefore, urged that the order passed by the Appellate Collector may be set aside and there may be an order for refund of the fine amount which the appellants had paid.
5. Shri Gidwani for the Respondent Collector submitted that before the Appellate Collector, the appellants representative had categorically stated that the appellants were not challenging the legality of the order-in-original but had only prayed for leniency. Having regard to the said submission, it would not be now open to the appellants to contest the legality of the order. Shri Gidwani further, contended that what had been now produced by the appellants are photostat copies which contained number of corrections which are not authenticated and as such no reliance can be placed on those copies. Shri Gidwani further submitted that normally a separate list will be attached to each licence and it had never been the practice to attach the same list to more than one licence. But then the photo copies produced indicate as if same list having been attached to more than one licence. This according to Shri Gidwani raises some suspicion as to the genuineness of the lists produced. Shri Gidwani contended that unless the appellants produced the original licence and the lists he would not be in a position to argue whether the licence was valid for the import in question.
6. Shri Kantawala in reply submitted that his clients have made efforts to trace the original licence. They were unable to secure it but then the Appellate Collector in his order had referred to the list dated 13th September, 1973. Thus, it can be inferred that the appellants did produce an authenticated list before the Appellate Collector and as such there is no scope to suspect the genuineness of the licence.
7. Considered the submissions made on both sides. Though there is considerable force in the contention of Shri Gidwani that the appellants cannot be allowed to challenge the legality of the order-in-original, having regard to the submission made before the Appellate Collector, I am unable to accept his contention because the Appellate Collector had gone into the merits though he observed that he will not go into that matter. It is a settled law that despite the giving up or abandonment of a plea by a party the court or the adjudicating authority decides the issue on merits then the party which abandoned or had given up the issue would be entitled to agitate the point abandoned or given up before the Appellate forum. I, therefore reject Shri Gidwani's contention that appellant cannot be allowed to challenge the legality of the order passed by the Appellate Collector.
8. Coming to the merits of the order passed by the Appellate Collector Shri Gidwani did not address any arguments apparently because he could not support the view taken by the Appellate Collector that the value should be restricted to Rs. 5000/- even though such a restriction was not found in the licence. But then Shri Gidwani submitted that unless the original licence is produced he would not even subscribe that there was no such value restriction in the licence issued to the appellants.
The order of the Appellate Collector prima facie appears bad because he has to interpret the licence as it stood and he cannot place any restriction as to the value if the licence did not place any such restriction. But then as has been rightly pointed out by Shri Gidwani, no reliance can be placed on the photostat copies produced by the appellants. In the circumstances, the only course left to me is to set aside the order of the Appellate Collector and to remand the matter to the Collector (Appeals) for consideration afresh in the light of the observations contained in this order. The appellants shall produce the original licence and the list or lists attached to the licence before the Collector (Appeals) within a period of two months from this date.
Thereafter the Collector (Appeals) will dispose of the appeal in accordance with law.