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Commercial Clearing Agencies Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Reported in(1985)(5)LC1571Tri(Kol.)kata
AppellantCommercial Clearing Agencies
RespondentCollector of Customs
Excerpt:
.....appeal has been correctly signed and verified. the learned consultant has pleaded that the amended appeal filed on 21th december, 1984, is in continuation to the original, appeal filed on the 21st april, 1983. he has referred to hon'ble supreme court judgment in the case of chandrakant krishnarao pradhan v. jasjit singh, collector of customs, bombay, reported in air 1962 supreme court 204 wherein the hon'ble supreme court had held that the customs authorities may have no dealing with the real owner of the goods where the agent has been authorised to deal with them for the purposes of the sea customs act or any of its provisions. section 4 clearly lays down a fiction, that if the agent is authorised by the real owner in respect of any of the matters in the act, the customs authorities.....
Judgment:
1. Commercial Clearing Agencies Pvt. Ltd., Calcutta had filed an appeal being aggrieved from Order No. CAL-CUS-2564/82 dated 8th September, 1982 passed by the Collector (Appeals), Calcutta. The said was presented in the Registry on the 21st April, 1983.

2. Shri P.R. Biswas, the learned consultant has appeared on behalf of the appellant and Shri A.K. Chatterjee, the learned Junior Departmental Representative has appeared on behalf of the respondent. Shri A.K.Chatterjee, the learned J.D.R. has raised a preliminary objection that the appeal presented on the 21st April, 1983, is not in order as the appeal has been signed and verified by the Clearing Agent and the same is not in accordance with Customs (Appeals) Rules, 1982 vide G.S.R. No.564-E. The learned J.D.R. has pleaded that as per rule 6 read with Sub-rule (2) of Rule 3 of the Customs (Appeals) Rules, 1982, the appeal should have been signed by the principal officer of the company whereas in the instant case, the appeal has been signed by the clearing agent and the clearing agent is not an aggrieved person and the appeal presented on the 21st April, 1983 is null and void in the eyes of law.

He has pleaded that the subsequent appeal presented in the Registry on the 28th December, 1984 is hit by limitation. He has further submitted that the ignorance of law or mistake is not a sufficient cause. He has referred to the judgment from the commentary of the Limitation Act by B.B. Mitra, 18th Edition, page 66 and has referred to-Ramjiwan Mal v.Chand Mal, 10 AH. 587 (597); Jag Lull v. Ear Narain, 10 All. 524 (529); Brij Indar v. Kanshi Ram, 45 Cal. 94 (106) (PC); Dy. Commissioner v.Chhedi, AIR 1943 Oudh 57. The learned J.D.R. has pleaded that since the appeal has not been signed and verified properly, the appeal should be dismissed.

3. In reply, Shri P.R. Biswas, the learned Consultant has pleaded that the earlier appeal presented in the Registry on 21st April, 1983 is fully covered under the Rules. He has pleaded that the order-in-appeal was issued in the name of M/s. Commercial Clearing Agencies Pvt. Ltd. and, as such, the appeal has been correctly signed and verified. The learned consultant has pleaded that the amended appeal filed on 21th December, 1984, is in continuation to the original, appeal filed on the 21st April, 1983. He has referred to Hon'ble Supreme Court judgment in the case of Chandrakant Krishnarao Pradhan v. Jasjit Singh, Collector of Customs, Bombay, reported in AIR 1962 Supreme Court 204 wherein the Hon'ble Supreme Court had held that the Customs authorities may have no dealing with the real owner of the goods where the agent has been authorised to deal with them for the purposes of the Sea Customs Act or any of its provisions. Section 4 clearly lays down a fiction, that if the agent is authorised by the real owner in respect of any of the matters in the Act, the Customs authorities would deal with the agent as if he were the owner. The effect of fiction is, therefore, to make an agent answerable to the Customs authorities within the four corners of his authorisation. The fiction operates only within those limits. An agent may be authorised to declare the real value and to pay customs duty or other charges. If an agent is authorised in this manner, under the fiction created by S. 4, he would be regarded as the owner and would be dealt with as such, by the Customs authorities. He has further submitted that the appeal filed on 28th December, 1984, is not a fresh appeal. The said appeal is duly annexed with the letter of request.

Para No. 10 to No. 14 of the said petition is reproduced as under : "10. The petitioners state and submit that the said appeal was in fact filed by the Petitioner No. 1 being aggrieved by the said order. The Petitioner No. I was also accepted as the appellant before the Collector (Appeals).

11. In the above facts and circumstances, the petitioners state and submit that the said appeal may be deemed .to have been filed by the Petitioner No. 1 as an aggrieved person and not as agent of the Petitioner no. 2.

12. By way of abundant precaution, however, the petitioners submit herewith an amended memo of appeal with the Petitioner No. 2 as another appellant in addition to Petitioner No. 1. The said amended memo of appeal is annexed hereto marked with the letter 'B'.

(a) It be held that the appeal already filed being CD(T)CAL Appeal No. 117 of 1983 by the Petitioner No. 1 as the appellant is legal and proper and is competent.

(b) Alternatively, the said appeal already filed be amended with the Petitioner No. 2 as another appellant as per the amended memo, of appeal.

On the objection of the learned J.D.R., the learned Consultant has conceded that the ignorance of law and mistake, is no excuse for the condonation of delay.

4. In reply, Shri A.K. Chatterjee, the learned J.D.R. has again stated that the clearing agent does not get inherent right merely because the copy has been sent to him. The clearing agent has to establish that he has got legal grievance. He has pleaded that the appeal filed on the 21st April, 1983 is a nullity in the eyes of law and the same should be dismissed.

5. After hearing both the sides and going through the facts and circumstances of case, I would like to observe that present appeal filed on 21st April, 1983 is not a transferred matter. It is a fresh appeal filed on Form No. C.A.-3 before the Tribunal. The Appeal Rules have come into force with effect from 11th October, 1982 vide G.S.R.No. 564-E. Rule 3 and Rule 6 of the said Appeal Rules are reproduced as under : "3. For an of appeal to Collector (Appeals):-(1) An appeal under Sub-section (1) of Section 128 to the Collector (Appeals) shall be made in Form No. C.A.-1.

(2) The grounds of appeal and the form of verification as contained in Form No. C.A.-l shall be signed :- (a) in the case of an individual, by the individual himself or where the individual is absent from India, by the individual concerned or by some person duly authorised by him in this behalf and where the individual is a minor or is mentally incapacitated from attending to his affairs, by his guardian or by any other person competent to act on his behalf; (b) in the case of a Hindu Undivided Family, by the Karta and, where the Karta is absent from India or is mentally incapacitated from attending to his affairs, by any other adult member of such family; (c) in the case of a company or local authority, by the principal officer thereof; (d) in the case of a firm, by any partner thereof, not being a minor; (e) in the case of any other association, by any member of the association or the principal officer thereof; and (f) in the case of any other person, by that person or some person competent to act on his behalf.

(3) The form of appeal in Form No. C.A.-l shall be filed in duplicate and shall be accompanied by a copy of the decision or order appealed against." "6. Form of appeals, etc., to the Appeallate Tribunal :--(1) An appeal under Sub-section (1) of Section 129A to the Appellate Tribunal shall be made in Form No. C.A.-3.

(2) A memorandum or cross-objections to the Appellate Tribunal under Sub-section (4) of Section 129A shall be made in Form No. C.A.-4.

(3) Where an appeal under Sub-section (1) of Section 129A or a memorandum of cross-objections under Sub-section (4) of that Section is made by any person other than the Collector of Customs, the grounds of appeal, the grounds of cross-objections and the forms of' verification as contained in Form Nos. C.A.-3 and C.A.-4, as the case may be respectively shall be signed by the person specified in Sub-rule (2) of rule 3.

(4) The form of appeal in Form No. C.A.-3 and the form of memorandum of cross-objections in Form No. C.A.-4 shall be filed in quadruplicate and shall be accompanied by an equal number of copies of the order appealed against (one of which at least shall be a certified copy)." A simple reading of Sub-rule (3) of Rule 6 shows that the Form No C.A.-3 and C.A.-4, as the case may be, shall be signed by the person specified in Sub-rule (2) of rule 3 of the Customs (Appeal) Rules, 1982. In the instant case, the importer is Straw Products Ltd., 7, Council House Street, Calcutta-700001 and, as such, the appeal should have been signed by the principal officer of the company as per provisions of Sub-rule (c) of Sub-rule (2) of Rule 3 of the Customs (Appeal) Rules, 1982. In any case, the appeal could have been signed by a general and special poper of attorney duly constituted under the Power of Attorney Act on behalf of the company. In the instant case, there is no execution of the special or general power of attorney, under the Power of Attorney Act. Nowhere, there is mention of the name of the importer in the order passed by the learned Asstt. Collector of Customs as well as the Appellate Collector of Customs. Undoubtedly, there was no such requirement of signing or verifying the appeal before the coming into force of the Customs Appeal (Rules), 1982.I had decided this issue in Appeal No. C.D.(T)CAL-173/80 in the case of Harshadray M.Doshi v. Collector of Customs, Calcutta vide Order No. 343, dated 1st September, 1984. In that case the revision application was signed by the clearing agent and there were no Appeal Rules in force at that time and no procedure was prescribed by the law. I very respectfully agree with the findings in the judgment of the Hon'ble Supreme Court cited by the learned consultant reported in 1960 AIR S.C. 62. That judgment is helpful only in those cases, where no Appeal Rules have been made. I would also like to refer a Special Bench decision in the case of V. V.Dabke & Sons, Bombay v. Collector of Customs, Bombay, reported in 1983 E.L.T. 583 wherein the Hon'ble Bench had held that there is no provision under the Customs Act or the Customs (Appeal) Rules whereby it can be contemplated that an agent can file an appeal in his own rights. Therefore, a customs clearing agent has no locus standi to file an appeal for the imports made by his principals. It was further held that the Customs (Appeals) Rules, 1982 operative from 11-10-1982 cannot be invoked in respect of earlier proceedings and, therefore, the Tribunal cannot question the validity of appeals which were signed by the agents. Since the appeal presented in the Registry on the 21st April, 1983, is not in conformity with the Customs (Appeal) Rules, 1982 and the appellant has not been able to show any sufficient cause as to the defect in the appeal, I feel that it is not a fit case where this Court should exercise its discretion under Rule 11 of the Customs, Excise and Gold (Control) Appellate Tribunal Rules, 1982. Accordingly I hold that the appeal was not signed and verified properly. Admission of supplementary appeal at this stage will infringe the right of the respondent as the same is hit by limitation. The appeal is dismissed.


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