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Phul Chand Agarwala Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Reported in(1985)(21)ELT515Tri(Kol.)kata
AppellantPhul Chand Agarwala
RespondentCollector of Customs
Excerpt:
.....customs act whereas revision application under the gold (control) act was to be filed before the gold control administrator. revision application wing of the government for dealing with the revisions applications under the customs act was situated in jeevan deep buildings, parliament street, new delhi whereas the revision application section dealing with the revision application under the gold (control) act was situated in the north block, central secretariat. lastly, shri chatterjee, the learned j.d.r. has referred to the last para of the appellant's revision application where the appellant himself has mentioned that the revision application fee at rs. 125/- was paid under section 131(2a) of the customs act, 1962. the said paragraph is reproduced as under :- "my client encloses custom.....
Judgment:
1. Shri Phul Chand Agarwala, P.O. Fakiragram, Dist. Goalpara Assam, had filed a revision application to the Additional Joint Secretary (Revision Application), Govt. of India, Ministry of Finance (Dept. of Revenue), Jeewan Deep Buildings, Parliament Street, New Delhi being aggrieved from Order No. 621 and 622/79 dated 28th February, 1979 passed by the Appellate Collector of Customs, Calcutta. The said revision application was received in the Ministry on the 26th November, 1979 and was assigned the Revision Application No. 372/710/79-Cus. II dated 30th November, 1979. After the coming into existence of the Tribunal, the said revision application was transferred to the Tribunal under Section 131B of the Customs Act, 1962 to be disposed of as appeal. The appeal was posted for hearing on the 23rd July, 1984 and on the request of the appellant, the appeal was adjourned to 25th July, 1984. Shri K.K. Banerjee, the learned Advocate on behalf of the appellant had appeared on the said date and it was brought to the notice of the learned Advocate that the appellant had filed one revision application against a consolidated order passed by the learned Appellate Collector of Customs disposing of two appeals. To this query, the learned advocate had stated that the learned Appellate Collector of Customs had disposed of two Appeals by two consolidated orders-one under the Customs Act and other under the Gold (Control) Act, 1968. The learned Advocate had requested for adjournment.

On 4th December, 1984, Shri K.K. Banerjee, the learned Advocate had appeared. He has stated that the appellant has filed another appeal under the Customs Act, 1962 which was presented in the Registry on the 11th September, 1984. Shri Banerjee, the learned Advocate has pleaded that the original revision application filed by the appellant which has been transferred to the Tribunal, may be treated as an appeal under the Gold (Control) Act and the fresh appeal filed by him, may be treated under the Customs Act.

To this argument of the learned advocate Shri A.K. Chatterjee, the learned Junior Departmental Representative had raised a preliminary objection that the original revision application filed by the appellant, was a revision application under the Customs Act and the same cannot be treated as a revision application under the Gold (Control) Act. Both the parties wanted time to argue on the limited issue. In the interests of justice the appeal was adjourned to 6th March, 1985.

2. Shri K.K. Banerjee, the learned Advocate has argued that the original revision application may be treated as one under the Gold (Control) Act. The learned Advocate has referred to last six paras of his revision application. The same are reproduced as under :- "Since it has not been proved beyond doubt that the seized gold is of foreign origin and is smuggled gold the proceedings under the provisions of the Customs Act, 1962 were ab initio void, illegal and without jurisdiction and the penalty of Rs. 1,000/- imposed on my client under Section 112 thereof is in violation of the principles of natural justice.

My client, therefore, prays that the aforesaid penalty may kindly be remitted.

In regard to the parallel proceedings under the provisions of the Gold (Control) Act, 1968 my client submits that in the circumstances of the case the order of absolute confiscation of the seized gold together with the personal penalty of Rs. 5.000/- imposed on my client is illegal and with jurisdiction and in any event is extremely harsh.

My client, therefore, prays that the aforesaid penalty of Rs. 5,000/- may kindly be remitted and the seized gold allowed to be redeemed on such terms as may be considered appropriate.

My client encloses Customs House Treasury Receipt No. M-1156, dated 13-11-1979 for Rs. 125/- in payment of the fee as required under Section 131(2A) of the Customs Act.

The learned Advocate has pleaded that since the learned Appellate Collector of Customs had disposed of two appeals by a consolidated order, the appellant was under the honest and bona fide belief that one revision application has to be filed and as such, there is no negligence or omission on the part of the appellant in any way. He has pleaded that the appellant's original revision application may be treated as one filed under the Gold (Control) Act, 1968.

3. In reply, Shri A.K. Chatterjee, the learned J.D.R. has pleaded that there were two different parallel proceedings against the appellant-one under the Gold (Control) Act, 1968 and the other under the Customs Act, 1962. He has pleaded that two separate adjudication orders, were passed and the appellant had preferred two separate appeals to the learned Appellate Collector of Customs. Incidentally, the same learned Appellate Collector of Customs enjoyed powers to dispose of appeals under the Customs Act as well as under the Gold (Control) Act and had disposed of both the appeals by a consolidated order on the ground that the appellant is the same. Shri Chatterjee, learned J.D.R. has conceded that the Appellate Authority has not earmarked the order under the respective act by not affixing an enclosure to the Order-in-Appeal giving the details of Order-in-Original dealt with by him in this consolidated order. It has been further argued by him that the appellant had filed a revision application under the erstwhile Section 131 of the Customs Act, 1962 and had addressed the same to the Additional Joint Secretary (Revision Application), Govt. of India, Ministry of Finance (Dept. of Revenue), Jeewan Deep Buildings, Parliament Street, New Delhi. The learned J.D.R. has stated that there was separate unit in the Finance Ministry which was dealing with the revision application filed under the Customs Act whereas revision application under the Gold (Control) Act was to be filed before the Gold Control Administrator. Revision Application Wing of the Government for dealing with the revisions applications under the Customs Act was situated in Jeevan Deep Buildings, Parliament Street, New Delhi whereas the Revision Application Section dealing with the revision application under the Gold (Control) Act was situated in the North Block, Central Secretariat. Lastly, Shri Chatterjee, the learned J.D.R. has referred to the last para of the appellant's revision application where the appellant himself has mentioned that the revision application fee at Rs. 125/- was paid under Section 131(2A) of the Customs Act, 1962. The said paragraph is reproduced as under :- "My client encloses Custom House Treasury Receipt No. M-1156, dated 13-11-1979 for Rs. 125/- in payment of the fee as required under Section 131(2A) of the Customs Act".

The learned J.D.R. has pleaded that the transferred revision application which is now being disposed of by this Court, may be treated as an appeal under the Customs Act, 1962. Otherwise, the Govt.

cannot appropriate the revision application fee of Rs. 125/- paid in pursuance of Section 131(2A) of the Customs Act, 1962 because no fee was payable in respect of revision application to be filed before the Gold Control Administrator under the Gold (Control) Act.

4. In reply, Shri K.K. Banerjee, the learned Advocate has again requested that the transferred matter now being treated as an appeal, may be deemed to have been filed under the Gold (Control) Act, 1968.

5. After hearing both the sides and going through the facts and circumstances of the case, I would like to observe that there is full force in the arguments of the learned J.D.R. The appellant had paid the revision application fee at Rs. 125/- by Treasury Receipt No. M-1156, dated 13-11-1979 under Section 131(2A) of the Customs Act, 1962. The revision application was addressed to the Additional Joint Secretary (Revision Application), Govt. of India, Ministry of Finance (Dept. of Revenue), Jeevan Deep Buildings, Parliament Street, New Delhi.

Accordingly, I hold that the transferred revision application which is to be disposed of as an appeal, is to be treated as one filed under the Customs Act, 1962. This order is without prejudice on the point of limitation in the filing of the original revision application.


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