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Shri Indu Bhushan Kumar and ors. Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Reported in(1983)LC1295DTri(Kol.)kata
AppellantShri Indu Bhushan Kumar and ors.
RespondentCollector of Customs
Excerpt:
.....govt. may appoint one or more addl. collectors of customs who are not of the same status and rank as collectors but neverthless are empowered to exercise the same powers of adjudication and other statutory powers as the collector of customs.however, the fact that addl. collector of customs, calcutta, has been appointed as collector of customs for the specified geographical jurisdiction would not, in our view, confer on him the status and rank of collector of customs, if, in reality, he is an officer lower in rank than the collector of customs. and if the addl. collector of customs, is an officer lower in rank than the collector, then appeal against such an addl. collector's order would lie to the collector (appeals) by reason of the provisions of section 128 of the act.13. if we.....
Judgment:
1. All these appeals arise out of and are directed against the orders passed by the Additional Collector of Customs, Muzaffarpur. As these appeals involve an important question of law, i.e. whether an appeal against the decision or order passed by the Additional Collector of Customs as an adjudicating authority, lies to the Appellate Tribunal, they are clubbed together and hence this common order.

2. When we took up the stay application in appeal No. C.D. (T) CAL-90/82 for hearing, Shri A.K. Chatterjee, Jr. D.R. raised a preliminary objection as to the maintainability of the appeal itself.

Therefore, we adjourned the case to the next day. And on that day, with consent, we clubbed all the Appeals and heard arguments for both sides.

3. Shri Chatterjee contended that after coming into force of the Finance (Act No. 2) Act, 1980 (Act No. 44 of 1980), an appeal against the decision or order passed by the Additional Collector of Customs does not lie to the Appellate Tribunal and that it lies to the Collector (Appeals). Elaborating his contention, Shri Chatterjee urged that the Additional Collector of Customs is an officer lower in rank than a Collector of Customs and as such agains t his decision or order appeal lies only to the Collector (Appeals) and not to the Appellate Tribunal. According to Shri Chatterjee, all the Additional Collectors who are functioning in the Customs department are only Deputy Collectors and for certain purposes they have been designated as Additional Collectors. Shri Chatterjee also submitted that the confidential rolls of the Additional Collectors are written by the Collectors and they are subordinate to the Collectors. Their jurisdiction and powers are not co-extensive with those of the Collectors of Customs. He further submitted that against the decision or order passed by the Deputy Collectors appeal always lay to the Collector (Appeals) and when it is so an appeal against the decision or order passed by the Deputy Collector who is designated as Additional Collector should necessarily lie to Collector (Appeals) and not to the Appellate Tribunal. He vehemently urged that the Additional Collector is an officer of Customs lower in rank than a Collector of Customs and, therefore, all these appeals which are directed against the orders passed by the Additional Collector cannot be entertained by the Appellate Tribunal and that they shall have to be returned to the respective appellants for being presented before the appropriate authority which, according to him, is the Collector (Appeals).

4. Dr. Sudhir Bera, Advocate who represented the appellants in Appeal No. 67/82 and 89/82, Shri N.N. Roy Chowdhury, Consultant who represented the appellants in Appeal No. 90/82 and Shri O.K. Mukherjee, Consultant who represented the appellants in Appeal No. 38/83 on the other hand contended that appeal against the decision or order passed by the Additional Collector of Customs lies to the Appellate Tribunal and not to the Collector (Appeals). In support their contention they urged the following grounds : (i) In the preamble of the orders in Appeal No. 67/82, 89/82, and 90/82, the Additional Collector has stated that appeal against his order lies to the Central Board of Excise & Customs, New Delhi.

Further, in the preamble of his order in Appeal No. 38/83, the Additional Collector has stated that against his order appeal lies to the Appellate Tribunal.

(ii) Under Section 2 (8) of the Customs Act, 1962 (which will be hereinafter referred to as "the Act"), 'the Collector of Customs' is defined to include an 'Additional Collector of Customs'.

(iii) Section 3 of the Act specifies the officers of Customs.

Additional Collector is not included in that section because he is included in the category of 'Collector of Customs' by reason of the definition.

(iv) Under Section 152 of the Act, the Central Government has been empowered to confer the powers of the Collector of Customs on other Customs Officers and that the Central Government has empowered the Additional Collector of Customs, and, therefore, the Additional Collector, for all intent and purposes, is a Collector, and; (v) Lastly, Section 129-A (1) specifically provides for an appeal against the decision or order passed by the Collector of Customs to the Appellate Tribunal.

5. We have given our anxious consideration to the arguments advanced for and against the point at issue and we have also carefully scanned through the relevant provisions of law.

6. As has been stated earlier the common question that arises for consideration in all these appeals is whether an appeal against a decision or order passed by the Additional Collector of Customs an adjudicating authority lies to the Appellate Tribunal In order to answer this question, it is necessary to refer to certain of the provisions of the Act and the Notifications issued under the Act which are relevant and have bearing on the issue involved.

Section 2 of 'the Act' which is an interpretation section, interalia, provides: "In this Act, unless the context otherwise requires, -(1)...(2)...(3)...(4)...(5)...(6)...(7)..."Collector of Customs" includes an "Additional Collector of Customs", (emphasis supplied by us) Section 3 of 'the Act' which provides for the classes of officers of Cus-reads : "There shall be the following classes of officers of Customs, namely : -- (e) such other class of officers of Customs as may be appointed for the purposes of this Act." Sub-section (1) of Section 4 of 'the Act' which deals with the appointment of officers of Customs provides : "The Central Government may appoint such persons as it thinks fit to be officers of Customs." Section 5 of 'the Act' relates to the powers of Officers of Customs.

Subsection (1) of that section reads : "Subject to such conditions and limitations as the Board may impose, an officer of Customs may exercise the powers and discharge the duties conferred or imposed on him under this Act." Sub-sections (2) and (3) of this section are not relevant for our purpose.

Section 6 of 'the Act' which provides for entrustment of functions of Board and Customs officers on certain other officers, reads: "The Central Government may, by notification in the Official Gazette, entrust either conditionally or unconditionally to any officer of the Central or the State Government or a local authority any functions of the Board or any officer of Customs under this Act.

(b) any power exercisable by a Collector of Customs under this Act may be exercisable also by a Deputy Collector of Customs or an Assistant Collector of Customs empowered in this behalf by the Central Government;" Chapter XV of the Act deals with appeals. Sub-section (1) of Section 128 provides appeals to the Collector (Appeals). It reads : Any person aggrieved by any decision or order passed under this Act by an officer of Customs lower in rank than a Collector of Customs may appeal to the Collector (Appeals) within three months from the date of the communication to him of such decision or order.

Proviso to this sub-section as well as Sub-section (2) are not relevant for our purpose.

Sub-section (1) of Section 129(A) provides for appeals to the Appellate Tribunal and it reads : "Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order- (a) a decision or order passed by the Collector of Customs as an adjudicating authority". The rest of the provisions of this section are not relevant for our purpose.

Sub-section (2) of Section 129-D confers suo moto revisional power to the Collector of Customs: "The Collector of Customs may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order direct such authority to apply to the Collector (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Collector of Customs in his order." 7. Now coming to the Notification, the Central Government has appointed certain persons as Collectors, Deputy Collectors and Assistant Collectors of Customs for certain geographical areas. Suffice if we refer to a part of the Notification No. 36 dated 1st February, 1963, amended from time to time and a part of Notification No. 37-Cus. dated 1st February, 1963 as amended from time to time. In exercise of their powers conferred by subsection (1) of Section 4 of the Act, the Central Government appointed the Collector of Customs, Calcutta and Additional Collector of Customs, Calcutta as Collector of Customs for the area comprising of the Port of Calcutta, Dum Dum Airport, the area under the jurisdication of Calcutta, Howrah and South suburban Corporations, so much of the Hooghly River as is downstream of the northern limit of Calcutta Port and all lands as are within six miles of the high water mark at spring tide on either side of the river. In exercise of powers conferred by Sub-section (1) of Section 4 of the Customs Act, 1962, the Central Government appointed Collector of Central Excise, Ahmedabad, Allahabad, Bangalore, Baroda, Bombay, Chandigarh, Guntur, Hyderabad, Jaipur, Bhubaneshwar, Kanpur, Madhya Pradesh, Madras, Madurai, Nagpur, Patna and Pune as Collectors of Customs within their respective jurisdiction.

8. Bearing in mind the above provisions of the Act and the Notifications, we shall now proceed to consider as to whether an appeal against a decision or order passed by the Additional Collector of Customs, Muzaffarpur as an adjudicating authority lies to the Appellate Tribunal as contended by Dr. Sudhir Bera and S/Shri N. N. Roy Chowdhury and G.K. Mukherjee or to the Collector (Appeals) as contended by Shri A. K. Chatterjee, J.D.R. The Advocates and the Consultants who represented the appellants did not dispute that the Additional Collector is an officer of Customs lower in rank than a Collector of Customs. They also did not dispute that he is an officer subordinate to a Collector of Customs. They further did not dispute that a Collector of Customs exercises overall supervision over the functions and duties of the Additional Collector. They also did not dispute the submission made by Shri Chatterjee that the confidential rolls of the Addl.

Collectors are written by Collectors. They further did not dispute the statement made by Shri Chatterjee that if there is more than one Deputy Collector in the Collectorate of Customs the senior-most Deputy Collector is being designated as the Addl. Collector and if there is only one Deputy Collector he is designated as the Addl. Collector. They also did not dispute that the jurisdiction and powers of the Addl.

Collector are not co-extensive with those of the Collectors. Now considering the position and the powers and jurisdiction of the Addl.

Collector, the one and the only conclusion to be arrived at is that he is an officer of Customs lower in rank than a Collector of Customs. The question, therefore, arises whether an appeal against a decision or order passed by such an Additional Collector of Customs lies to the Collector (Appeals) or to the Appellate Tribunal. Section 128 is very clear, unambiguous and explicit. It provides that in respect of any order passed under the Act, by an officer of Customs lower in rank than a Collector of Customs, appeal shall lie to the Collector (Appeals). A fortiori, if the Additional Collector of Customs is considered as an officer of Customs lower in rank than a Collector of Customs, then appeal would lie to the Collector (Appeals). The contention of the Appellants is than even though the Additional Collector is an officer of Customs lower in rank than a Collector, having regard to the definition of the expression "Collector" and having regard to the provisions of Section 3, for all intents and purposes, the Additional Collector is a Collector and, therefore, against his decision or order appeal lies to the Tribunal as provided in cl. (a) of Sub-section (1) of Section 129-A. Let us closely examine this contention.

9. It is argued that by reason of the definition of the expression 'Collector of Customs' the Additional Collector of Customs should be considered as a Collector of Customs. It is further argued that precisely for the above reason the Parliament did not include the Additional Collector as one of the classes of officers of Customs in Section 3 of the Act. Though these arguments appear attractive, on close scrutiny. The definition contained in Section 2(8) is an inclusive definition. Further, it is not absolute in nature. Section 2 of the Act begins with the words "In this Act, unless the context otherwise requires 'Collector of Customs' includes an 'Add). Collector of Customs'." It is thus clear that it is not always obligatory to construe the expression 'Collector of Customs' as to include 'Addl.

Collector'. If the context requires otherwise, the expression 'Collector of Customs, may not include 'Additional Collector'.

10. Let us now proceed to consider the purpose for which the inclusive definition is given. It is well settled law that the words 'inclusive' is used in order to enlarge the- meaning of words or phrases occurring in the body of the Statute; and when it is so we find that there is not much substance in both the arguments. Used, these words or phrases must be construed as comprehending, not only such thing as they signify according to their nature, import but also those things which the interpretation clause declares that they shall include (See Maxwell on Interpretation of Statutes, 12th Edition, page 270).

11. We have carefully scrutinised all the provisions of the Act. We could not find a single section where the expression 'Addl. Collector' finds place. If in the body of the Act, the words or expression 'Additional Collector' does not occur, then there is no scope to invoke the inclusive definition. In other words, if the expression 'Additional Collector' does not occur in the body of the Statute necessity does not arise to enlarge the meaning of the expression "Collector". We have been informed that in the Central Excise and Customs Department, there is no cadre of Additional Collector.

12. We may now turn to the first of the two Notifications referred to in paragraph 7 of this order. By this notification, the Central Govt.

has appointed the Collector of Customs, Calcutta and Addl. Collector of Customs, Calcutta, as Collectors of Customs for the geographical area mentioned in the Notification. Now, if the expression 'Collector of Customs' is to include 'Addl. Collector of Customs' in all contexts and for all purposes of the Act, it is not clear why the Central Govt. had to issue a notification in the manner it had done spelling out the two expressions 'Collector' and 'Addl. Collector' in separate terms. We are inclined, therefore to take the view that though the definition Clause 2(8) defines 'Collector' to include 'Additional Collector' one has to consider the context in which the expression 'Collector' is employed.

It may be that in a Collectorate like Bombay or Calcutta, the necessity may arise for appointing more than one Collector. Instead of bifurcating the Collectorate, the Central Govt. may appoint one or more Addl. Collectors of Customs who are not of the same status and rank as Collectors but neverthless are empowered to exercise the same powers of adjudication and other statutory powers as the Collector of Customs.

However, the fact that Addl. Collector of Customs, Calcutta, has been appointed as Collector of Customs for the specified geographical jurisdiction would not, in our view, confer on him the status and rank of Collector of Customs, if, in reality, he is an officer lower in rank than the Collector of Customs. And if the Addl. Collector of Customs, is an officer lower in rank than the Collector, then Appeal against such an Addl. Collector's order would lie to the Collector (Appeals) by reason of the provisions of Section 128 of the Act.

13. If we are to accept the contention of the appellants then there may be conflict between the two provisions of the Act, namely, between the provisions contained in Section 128 and Section 129-A (l)(a). One of the cardinal principles of interpretation is that the Court must endeavour to harmonize different provisions and prefer an interpretation which would lead to a harmonious construction rather than lead to inconsistency. In AIR 1953 Supreme Court Page 394 (Rao Shiv Bahadur Singh v. State of Bindhya Pradesh), the Supreme Court observed : "While, no doubt, it is not permissible to supply a clear and obvious lacuna in a Statute and imply a right of appeal, it is incumbent on the Court to avoid a construction if reasonably permissible on the language which would render a part of the Statute devoid of any meaning or application." Another important rule of construction is that if the words of Statute are clear and unambiguous it is the plain duty of the Court to give effect to them whatever may be the consequences. It has been held in more than one case, the mere fact, the result of Statute may be unjust or absurd, does not entitle the Court to refuse to give its effect. In AIR 1969 Kerala Page 234 (Lakshmy Kutty Amma v. Bappu Kudimi Mathu), the Kerala High Court held that the Court while interpreting the Statutes and giving effect to its provisions, may certainly point out any hardship and anomaly that is likely to result therefrom, but it must be left to the Legislature to take appropriate steps to amend the law as and when it deems fit to do so.

14. In our opinion, the two section, i.e. Section 128 which provides appeal to the Collector (Appeals) against the decision or order passed by an officer of Customs lower in rank than a Collector, and Section 129-A (l)(a) which provides appeal to the Appellate Tribunal against the order of the Collector of Customs could be best harmonized if we take a view that the expression 'Collector of Customs' used in Clause (a) of Sub-section (1) of Section 129 does not include an 'Additional Collector' who is lower in rank or subordinate to the Collector of Customs. The Additional Collector who can be considered as Collector of Customs by reason of definition, must be a person who is of equal rank as that of Collector. This interpretation of ours not only leads to a harmonious construction of the provisions of the two sections but it avoids inconsistency and no part of the provisions of the two sections is rendered nugatory or devoid of meaning. If the interpretation suggested by the appellants is to be accepted then the provisions of Section 128 is rendered devoid of meaning or application. Further, our interpretation is consistent with the policy and the scheme of the Act.

Against the decisions or orders of a Customs Officer lower in rank than a Collector of Customs the Act provides a first appeal to the Collector (Appeals) and a further appeal to the Appellate Tribunal. But against a decision or order of the Collector of Customs the Act provides only one appeal, i.e. an appeal to the Appellate Tribunal. By reason of the definition given in the Act of the expression 'Collector of Customs', if we are to interpret that an appeal against the decision or order passed by the Additional Collector who is admittedly lower in rank than a Collector of Customs, lies to the Appellate Tribunal then this interpretation not only renders Section 128 nugatory and inapplicable but also results in absurdity and will be opposed to the avowed policy and scheme of the Act. We have, in the beginning of this order, pointed out that the so-called Additional Collectors now functioning in the department are, in fact and reality, Deputy Collectors only. For administrative convenience they are designated as Additional Collectors. To-day "A" may be Additional Collector of Customs, Calcutta because he happens to be the senior-most among the existing Deputy Collectors but if tomorrow another person senior to "A", say "B" is to be posted to the Collectorate of Customs, Calcutta he become the Additional Collector and "A" will only be a Deputy Collector.

Admittedly, Additional Collector is not a promotional post for the Deputy Collector. In fact, if it has been so, on posting of "B", "A" cannot be reverted as Deputy Collector because such a reversion results in reduction in rank which is impermissible under Article 311(2) of the Constitution except by way of punishment after due enquiry.

15. Now if the contention of the appellants is accepted then against the order of "A" (in the illustration given above) when he was designated as Additional Collector though, in fact and reality, he was only a Deputy Collector, appeal would lie to the Appellate Tribunal.

But on posting of "B" (in the illustration given above), against the decision or order of "A", appeal would lie to the Collector (Appeals).

We are unable to think that Parliament had intended this kind of incongruity and absurdity. We, therefore, reject the contention of the appellants that as against the decision or order of an Additional Collector, who is lower in rank than a Collector of Customs, appeal would lie to the Appallate Tribunal.

16. Dr. Bera, Advocate faintly argued that the expression 'lower in rank' appearing in Section 128 has relation to the satutory ranking and not administrative hierarchy. Let us now proceed to consider this contention. The expression 'lower in rank' is not defined in the Act.

The meaning of the word 'rank' as given in the Chambers Twentieth Century Dictionary is "Arrangement in line, order, grade, or dignity, Station, high-standing to place in a line, to assign to a particular class or grade to take rank over to have a space in a rank, grade, scale or class". If the dictionary meaning is taken as a guide then it is not possible to accept the contention of Dr. Bera. Assuming that the expression 'lower in rank' appearing in Section 129-A relates to the statutory ranking even then the appellants' contention, in our opinion, cannot be accepted. In the Customs Act the officers of customs are enumerated in Section 3. In this section, it is nowhere stated that the Assistant Collectors are lower in rank to Deputy Collectors and Deputy Collectors are lower in rank to the Collector of Customs. But by reason of the order in which the expressions appear, namely, in the deseeding order it may not be unreasonable to hold that Deputy Collectors are lower in rank to Collectors and Assistant Collectors are lower in rank to the Dy. Collectors but then we do not find the ranking of Additional Collector in this Section. As a matter of fact, the Additional Collector does not find place in this section. It is urged that there is no need to specify Additional Collectors separately because of the definition given in Section 2 (8) of the Act. We have, in detail, dealt with the scope and effect of the inclusive definition. We have pointed out that the word 'include' is used in order to enlarge the meaning of the words and phrases occurring in the body of the Statute. If in the body of the Statute the expression 'Additional Collector' does not find place the question of enlarging its meaning does not arise.

17. The other plausible argument that may be advanced is that cl. (e) of Section 3 empowers the Central Government to appoint other class of officers of Customs. Therefore, the Central Government may, at any time, appoint Additional Collector and when so appointed they may have to be considered as Collectors of Customs by reason of definition of the expression 'Collector of Customs'. We have no quarrel as to the competence of the Central Government to appoint any other class of officers of customs but then any other class of officers that may be appointed by the Central Government in exercise of the powers under cl.

(e) of Section 3, shall acquire the rank below the Assistant Collector irrespective of their designation. This is because when words descriptive of persons or things are used in an order descending by rank, the general words at the end of the list is not taken as generic, but as including only what is lower in the genus than the lowest specified. (See Page 305 Maxwell on Interpretation of Statutes, 12th Edition).

18. With this, we now proceed to consider the other grounds urged for the appellants. It is urged that in the orders under appeal the Additional Collector has mentioned in three cases that appeal against his order lies to Central Board of Excise & Customs and in one case it was specifically mentioned that appeal lies to the Appellate Tribunal.

Therefore, the appellants have a right of appeal before this Tribunal.

It may be that prior to the coming into force of the Finance (Act No.2) Act, 1980 (Act No. 44 of 1980), the Central Board of Excise and Customs might have entertained appeals against the order or decision passed by the Additional Collector but on that ground it is not open to the appellants to urge that appeal lies to us. Neither the Additional Collector nor a party to the appeal can confer jurisdiction on this Tribunal if the Act does not confer such a jurisdiction. The practice cannot over-ride the provisions of the Act. If the law says, in emphatic term, that an appeal shall lie to the Collector (Appeals) against the order of an officer of customs lower in rank than a Collector, it is not open to the Tribunal to say that appeal shall not lie to that authority but it shall lie to the Appellate Tribunal. As has been stated earlier, the provisions of Section 128 do not admit of any doubt. It is clear, explicit and unambiguous. It provides for an appeal against the decision of order of customs officers lower in rank than a Collector to the Collector (Appeals). In the circumstances, we have no other alternative but to reject the above contention.

19. It is then urged that Section 152 of the Act empowers the Central Government to confer the powers of the Collector of Customs on any other officers of Customs. It is further urged that the Central Government has conferred the powers of the Collector of Customs on the Additional Collector of Customs and, therefore, the Additional Collector has to be equated with the Collector. This contention is to be stated to be rejected. Firstly, Section 152 of the Act nowhere empowers the Central Government to confer the powers of the Collector of Customs on the Additional Collector though it empowers the Central Government to confer the power of the Collectors, to Deputy Collectors and Asstt. Collectors. The appellants have not shown any notification under which the Central Government has delegated the powers of the Collector of Customs to an Addl. Collector. Even if there is to be such a delegation, the Addl. Collector by reason of such delegation, cannot be considered as Collector of Customs. The conferment of certain of the powers of the Collector on a lower authority is normally done to relieve the Collector of some of his duties. If the argument of the appellants is to be accepted as correct then all Deputy Collector and Asst. Collectors of Customs on whom the Central Government has conferred any powers of the Collector of Customs shall have to be treated as Collectors of Customs, Such an interpretation leads to absurdity.

20. After careful consideration of all the aspects, we hold that an appeal against the order or decision of an Addl. Collector of Customs who is lower in rank than a Collector of Customs, would lie to the Collector (Appeals) and not to the Appellate Tribunal.

21. In the above view of the matter, we hold that all these appeals which are directed against the orders of the Additional Collector of Customs, Muzaffarpur do not lie to the Appellate Tribunal and are, therefore, not maintainable. The remedy of the appellants is to approach the appropriate authority i.e. the Collector (Appeals).

22. The records in these appeals shall be returned to the respective appellants for being presented, if they so choose, before the appropriate authority, i.e., the Collector of Customs (Appeals). Since these appellants had preferred appeals to the Central Board of Excise & Customs or to this Tribunal in the belief that these were the proper appellate authorities, the Collector (Appeal) shall for the purposes of computing limitation, take into consideration the date of receipt of these appeals in the office of the Central Board of Excise & Customs or as the case may be, in the Registry of this Tribunal. If the appellants choose to pursue these appeal before the Collector (Appeals), they shall present them within 15 (fifteen) days from the date of receipt of the appeals papers by the respective parties on return of the papers by the Registry of this Tribunal.


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