Skip to content


Collector of Customs and Central Vs. Narendra P. Unrao and ors. - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided On
Reported in(1984)(15)ELT275Tri(Mum.)bai
AppellantCollector of Customs and Central
RespondentNarendra P. Unrao and ors.
Excerpt:
1. all these appeals arise out of the orders passed by the central board of excise & customs. the appellants are the collectors of customs, ahmedabad and bombay.2. as these appeals involve important questions of law as to the maintainability and competence of the collectors to prefer appeals against the orders passed by the board and having regard to the number of appeals filed by the collectors in the west regional bench and similar appeals which would have been filed in other benches of the tribunal, the president considered it necessary to constitute a larger bench to resolve the issue once for all. accordingly, a larger bench was constituted.3 as these appeals are heard only on the question of maintainability and the locus standi of the collectors to prefer the appeals, suffice.....
Judgment:
1. All these appeals arise out of the orders passed by the Central Board of Excise & Customs. The appellants are the Collectors of Customs, Ahmedabad and Bombay.

2. As these appeals involve important questions of law as to the maintainability and competence of the Collectors to prefer appeals against the orders passed by the Board and having regard to the number of appeals filed by the Collectors in the West Regional Bench and similar appeals which would have been filed in other Benches of the Tribunal, the President considered it necessary to constitute a larger Bench to resolve the issue once for all. Accordingly, a larger Bench was constituted.

3 As these appeals are heard only on the question of maintainability and the locus standi of the Collectors to prefer the appeals, suffice if we set out the facts of one of the appeals and accordingly we set out the facts of the appeal in appeal No. 336/83.

4. The Assessee, M/s. Perfect Power Systems, New Delhi, had imported 8 consignments of portable generators and had presented 8 Bills of Entry for clearance of the consignments through their Clearing Agents, M/s.

N.P. Jobanputra. The import licences, letters of authority and other relevant documents were produced before the Customs authorities. Shri K. Srinivasan, Collector of Customs, Bombay, in his order No.S/10-240/82-G dated 9th June, 1982 held that the licences produced were not valid to cover the goods imported. In that view of the matter, he directed confiscation of the goods but however, gave an option to the importers to redeem the goods on payment of fine in lieu of confiscation. The learned Collector refrained from imposing any penalty on the importers u/s 112 of the Customs Act by giving the benefit of doubt and holding that the act of importation was not a deliberate one but was only based on the interpretation of the policy.

5. The importers preferred an appeal against the order of the learned Collector to the Central Board of Excise & Customs and the matter was heard by Shri S. Venkataraman, Member of the said Board. The Board allowed the appeal on 17-9-1982 and set aside the order passed by the learned Collector of Customs, Bombay.

6 As has been stated earlier, the two Collectors, viz. Collector of Customs & Central Excise, Ahmedabad, and Collector of Customs, Bombay, have filed appeals claiming themselves to be aggrieved against the orders passed by the Central Board of Excise & Customs. A preliminary objection has been taken by the Respondents as to the maintainability of the appeals and also as to the locus standi of the Collectors to prefer appeals against the orders passed by the Central Board of Excise & Customs.

7. Shri Habibullah Badshah, the learned Advocate for the Respondent in Appeal Nos. 336 to 338 and 755 of 1983, contended that the appeals were purported to have been filed u/s 129-A (1) (c) of the Customs Act. The said provision did not permit the Collector to prefer an appeal against an order passed by the Board. He contended that the expression "any person aggrieved" appearing in Sub-section (1) of Section 129-A does not take within its ambit "the Revenue", much less the Collector. Shri Badshah contended that the expression 'any person aggrieved' would take in only an assessee. Elaborating his contention, Shri Badshah pointed out that Sub-section (1) of Section 129-A provides appeals against : (a) a decision or order passed by the Collector of Customs as an adjudicating authority ; (c) an order passed by the Board or the Appellate Collector of Customs under Section 128, as it stood immediately before the appointed day ; and (d) an order passed by the Board or the Collector of Customs, either before or after the appointed day, under Section 130, as it stood immediately before that day.

Shri Badshah contended that the Collector could not have filed appeals against his own decision or order falling under clauses (a) and (d). He further pointed out to Sub-section (2) of Section 129A, Section 129D and also to the provisions of Section 128 as it stood prior to and after the appointed day ; and then to Sections 130 and 131 as they stood immediately before the appointed day. It was urged by Shri Badshah that the provisions of the Act, as they stood prior to the appointed day did not provide for an appeal against the order of the Appellate Collector, or against the order of the Board. He urged that the order passed by the Board was final subject, however, to revision by the Central Government u/s 131. Shri Badshah contended that after the appointed day, the amended provisions did not enlarge the right of the Revenue to prefer an appeal against the order passed by the Board.

Incidentally, Shri Badshah urged that in all these appeals, the orders passed by the Collectors in their capacity as adjudicating authorities have been set aside by the Board and that the adjudicating authority became functus officio immediately after the order was passed, and therefore, cannot be considered as a person aggrieved by the decision passed by the Board.

8. Shri P. R. Vakil, the learned Advocate for the Respondent in Appeal No. 16/83, supplemented the arguments advanced by Shri Badshah and contended that under the provisions that existed prior to the appointed day, the Central Board of Excise & Customs was constituted as a final appellate authority and it is unthinkable that the Parliament intended to subject the assessee to second appeal. He also contended that the adjudicating authority cannot be considered as an aggrieved person. He further contended that since the Central Board was constituted as a final appellate authority under the provisions that existed prior to the appointed day, valuable right has accrued to the assessees and such a right cannot be taken away by providing second appeal. He then urged that after the appointed day, the powers of the Collector and the Board had been curtailed and the revisional powers exercised by the Board and the Collectors were taken away and they have been conferred with the power only to examine the records of the subordinates for the purpose of satisfying themselves as to the legality and propriety of any decision or order of their subordinates. He also pointed out to the provisions of Section 131-B which provide for transfer of the appeals which were pending before the Board immediately before the appointed day and the transfer of the proceedings which were pending with the Central Board of Excise & Customs, immediately before the appointed day.

9. Shri Kantawala, the learned Advocate for the Respondent in appeal No. 258/83, while reiterating the arguments advanced by Shri Badshah and Shri P.R. Vakil, contended that though the expression "person" has not been defined in the Customs Act, the expression "any person aggrieved" appearing in Section 129-A (1) cannot include the 'Revenue'.

10. Shri B.N. Parekh, the learned Advocate for the appellants in all these appeals, however, contended that the scheme of the Act after the appointed day envisages the Collector of Customs as "aggrieved person" and therefore he is competent to prefer an appeal under Section 129-A (1) (c) of the Act, against the orders passed by the Board and that all the appeals are maintainable. In support of his contentions, Shri Parekh mainly relied on the provisions of Section 129-A (1) (c) and Sub-sections 3 and 4 of Section 129-A (1), besides, clause (2) of the Removal of Difficulties Order, 1982 and Sub-rule (3) of Rule 6 of the Appellate Tribunal Customs (Appeals) Rules, 1982. It was the contention of Shri Parekh that even though there was no specific provision in the Act prior to the appointed day, conferring a right on the Collector to file revision against the order of the Board, he could always move the Central Government to revise the order of the Board and that in practice it is at the instance of the Collectors, the Central Government has been exercising suo motu revisional powers conferred on them u/s 131 of the Act, as it stood before the appointed day. It was further urged by Shri Parekh that the present appeals are filed by the Collectors not as adjudicating authorities but in their capacity as executive Collectors to safeguard the interests of the Revenue.

11. As stated earlier, the present set of appeals has been filed by the Collectors of Customs claiming themselves to be aggrieved by the orders passed by the Central Board of Excise & Customs in favour of the assessees and against the Revenue. Since we are deciding the question of maintainability, we would like to split the same into two :- Firstly, the question whether an appeal lies ; and secondly, the question of locus standi of the Collectors to prefer appeals.

12. The appeals in question were purported to have been filed u/s 129-A (1) (c) which reads :- "129-A (1). Any person aggrieved by way of the following orders may appeal to the Appellate Tribunal against such orders :- (c) an order passed by the Board or the Appellate Collector of Customs under Section 128, as it stood immediately before the appointed day".

The Counsel for the Respondents contended that the expression "any person aggrieved" appearing in Sub-section (1) of Section 129 does not take within its ambit the revenue and therefore, the Collector cannot file appeals before the Appellate Tribunal against the order passed by the Board. Shri Parekh, the learned Advocate for the appellants on the other hand contended that the said expression includes the Collector and therefore the appeals are maintainable. In order to appreciate the contentions urged on either side, it is necessary to look into the Scheme of the Act as it stood immediately before the appointed day and after the appointed day.

13. Chapter XV of the Customs Act, 1962 was amended by the Finance (No.2) Act, 1980 (Act No. 44 of 1980) and the amended provisions came into force on 11-10-1982. Before the appointed day, caption of Chapter XV was Appeals and Revision. After the appointed day, this caption has been changed and the caption now reads appeals. Prior to the appointed day, the Act conferred revisional power on the Board, on the Collector and also on the Central Government. The Board was conferred with suo motu power to call for and examine the records of any proceedings in which a Collector of Customs has passed any decision or order under the Act for the purpose of satisfying itself as to the legality and priority of any such decision or order and to pass such orders thereon as it thinks fit. The Collector of Customs was also conferred with the power of suo motu revision to call for and examine the records of the proceedings in which an officer of Customs subordinate to him has passed any decision or order under the Act for the purpose of satisfying himself as to the correctness, legality and propriety of such a decision or order and to pass such orders as bethinks fit, vide Section 130. Section 131 as it stood before the appointed day conferred revisional powers on the Central Government and that Section reads :- "131. Revision by Central Government -(1) the Central Government may, on the application of any person aggrieved by- (b) any order passed under Sec. 130 otherwise than on the application of any aggrieved person, or (c) any order passed on the application of any aggrieved person under Sec. 130 where the order is of the nature referred to in either of the proviso to Sub-section (1) of that Section, annul or modify such order.

(3) The Central Government may of its own motion annul or modify any order passed under Sec. 128 or Sec. 130.

(4) No order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value shall be passed under this Section - (a) in any case in which an order passed under Sec. 128 or Sec. 130 has enhanced any penalty or fine in lieu of confiscation or has confiscated goods of greater value ; and (b) in any other case, unless the person affected by the proposed order has been given notice to show-cause against it, within one year from the date of the order sought to be annulled or modified.

(5) Where the Central Government is of opinion that any duty of customs has not been levied or has been short levied, no order levying or enhancing the duty shall be made under this section, unless the person affected by the proposed order is given notice to show cause against it within the time-limit specified in Section 14. After the appointed day the Act did not provide for any revision by any authority. In other words, revisional power of the Board, the Collector and the Central Government has been altogether done away with. But then the Parliament did make adequate provisions to safeguard the interests of revenue. Under Sub-section (2) of Section 129-A the Collector of Customs has been empowered to direct an officer to prefer an appeal on his behalf to the Appellate Tribunal, if he is of the opinion that the order passed by the Appellate Collector of Customs u/s 128 as it stood before the appointed day or the Collector (Appeals) u/s 128-A is not legal or proper. Under Sub-section (1) of Sec. 129 D, the Board has been empowered to call for and examine the records of any proceedings in which the Collector of Customs as an adjudicating authority has passed any decision or order under the Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and also to direct such Collector to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as maybe specified in its order. Sub-section (2) empowers the Collector of Customs to call for and examine the records of the proceedings in which an adjudicating authority subordinate to him has passed any decision or order under the Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and to direct such authorities to apply to the Collector (Appeals) for determination of such points arising out of the decision or order' as he may specify in his order. Under Section 130, the Collector of Customs was conferred with the power to make a reference to the High Court any question of law arising out of an order gassed by the Appellate Tribunal. It is thus seen to safeguard the interests of 'the Revenue' specific provisions have been made in Chapter XV. Significantly, after the appointed day the Central Government has not been conferred with any quasi-judicial power. The Central Government can neither revise on its own motion or otherwise the order passed by the Board or the order passed by the Collector of Customs. According to Shri Parekh such a power has not been conferred on the Central Govt. because the revisional powers which the Central Government was exercising before the appointed day got enlarged and a right of appeal was conferred on 'the Revenue' u/s 129-A(1). Shri Badshah, the learned Advocate for the respondent, on the other hand contended that after the appointed day, an Appellate Tribunal consisting of Judicial and Technical Members came to be constituted.

That being an independent body, the necessity of providing the revisional power to the Government of India was considered unnecessary and therefore the Parliament did not deliberately vest any power on the Central Government to pass any order after the appointed day. He reiterated his contention that Section 129-A(1) did not confer any power on the Revenue to prefer an appeal against the orders specified in that Section.

15. Let us now proceed to examine whether the expression "any person aggrieved" takes within its ambit "the Revenue". "Any person aggrieved" is not a new phraseology used for the first time after the amendment.

This phraseology has been in existence even before the amendment.

Section 128(1) as it stood prior to the amendment reads- "any person aggrieved by a decision or order passed under this Act, may, within 3 months from the date of the communication to him of such decision or order ; (a) where the decision or order has been passed by a Collector of customs, appeal to the Board ; (b) where the decision or order has been passed by an officer of Customs lower in rank than a Collector of Customs, appeal to the Appellate Collector." Similarly, Sub-section (1) of Section 131 before the appointed day empowered the Central Government to revise the order passed by the Board or the Collector u/s 128 or u/s 130 on the application of any person aggrieved by such order. Similarly, after the appointed day u/s 128, any person aggrieved by a decision or order passed under the Act by an officer of Customs lower in rank than the Collector of Customs may appeal to the Collector (Appeals). Now it is not contended by Shri Parekh that before the appointed day, the Revenue or the Collector was conferred with the power to prefer an appeal u/s 128 as it stood before the appointed day or to file a revision to the Central Government u/s 131 as it stood prior to the appointed day. Shri Parekh also did not contend and probably could not contend that the Collector or the Revenue could prefer an appeal u/s 128 after the appointed day. If that was so, we see no merit in the contention advanced by Shri Parekh that the expression 'aggrieved person' appearing in Section 129-A(1) takes within its ambit 'the Revenue' or the Collector. In our considered opinion, the expression 'any person aggrieved' appearing in Sub-section (1) of Section 129-A does not take within its ambit 'the Revenue' or the Collector and, 'any person aggrieved' refers only to the assessee or other persons other than 'the Revenue'.

16. Now it is a well settled law that right to appeal is a statutory right. The statute should contain specific provision conferring a right to appeal. The learned Advocate for the appellant, Shri Parekh,.

conceded that either before or after the appointed day, there is no specific provision in the Act conferring on the Revenue a right to appeal. On the other hand, other provisions referred to by us viz., revisional powers conferred on the Board, the Collector and the Central Government prior to the appointed day and the specific provision for appeal conferred on the Collector of Customs under subsection (2) of Section 129-A and the power of examination of records of the subordinate authorities by the Board and the Collector under Section 129-D and the power of making reference to the High Court by the Collector under section 130, negatives the contentions urged by Shri Parekh. If the expression 'any person aggrieved' could take within its ambit 'the Revenue' or the Collector of contended by Shri Parekh, there was no need for the Parliament to confer a specific power of appeal on the Collector of Customs against the order passed by the Appellate Collector of Customs u/s 128 as it stood before the appointed day or the Collector (Appeals) u/s 128 because the Collector of Customs as well could have filed appeal under Sub-section (1) itself. Under that sub-section, appeal is provided against the order passed by the Collector (Appeals) u/s 128. If the expression 'person aggrieved' takes within its ambit the Collector, then Sub-section (2) of Section 129-A becomes redundant. Now it is a settled law that the Parliament does not make unnecessary provisions in an Act It was argued by Shri Parekh that if Collector is not to be included in the expression "any person aggrieved", there is no need for the Parliament to enact Sub-section (3) of Section 129-A. There is no force in this contention. Sub-section (3) appears after Sub-section (2). All that Sub-section (3) provides is period of limitation for preferring an appeal. Under Sub-section (2), the Collector of Customs has been empowered to direct a proper officer to appeal on his behalf to the Appellate Tribunal against the order of the Appellate Collector of Customs u/s 128 as it stood immediately before the appointed day and also against the order passed by Collector (Appeals) u/s 128-A. Therefore it became necessary for the Parliament to provide the period of limitation for preferring such an appeal. In Sub-section (3), the Parliament made a general provision which would apply both to 'the Revenue' as well as to the aggrieved person as to the period within which they are required to prefer appeals. The contention of Shri Parekh that Sub-section (4) also supports his contention that the expression "any person aggrieved" appearing in Sub-section (1) of Section 129-A takes in Revenue or the Collector also cannot be accepted. Subsection (4) only confers a right to file cross-objections. This sub-section again appears after Sub-section (2).

Since the Collector has been conferred with the power to direct an officer to prefer an appeal against the order of the Appellate Collector and Collector (Appeals), the other party has been conferred with the power to file a memorandum of cross-objection. It may be that the Collector could also file a cross-objection when an aggrieved person files an appeal against the orders specified under Sub-section (1) of Section 129-A. But-then there is no scope to construe that by reason of that power conferred on the Collector to file a memorandum of cross-objection, Parliament intended or provided the Revenue to prefer an appeal, under Sub-section (1) of Section 129-A What remained to be noticed in the contentions urged by Shri Parekh are clause (2) of the Removal of Difficulties Order, 1982 and Sub-rule (3) of Rule 6 of the Appellate Tribunal Customs (Appeals) Rules, 1982.

"The period within which an appeal against any order passed before the appointed day, by- (a) the Central Board of Excise & Customs or the Appellate Collector of Customs under Section 128 of the Act as it stood immediately before that day ; or (b) the Central Board of Excise & Customs or the Collector of Customs under Section 130 of the Act as it stood immediately before that day may be filed, shall, without prejudice to the provisions of Sub-section (5) of Section 129-A of the Act, be six months from the date on which the said order is communicated to the Collector of Customs, or, as the case may be, the other party preferring the appeal." 17. Shri Parekh contended that by this order, the Collector of Customs could prefer an appeal against the order passed by the Board u/s 128 as it Stood before the appointed day within 6 months from the date of its communication, and therefore, the expression "aggrieved person" appearing in subsection (t) of Section 129-A would take within its ambit, the Collector of Customs also. We put a question to Shri Parekh whether the Collectors of Customs are entitled for a communication of the order passed by the Board u/s 128 of the Act as it stood immediately before the appointed day. Shri Parekh frankly conceded that no such communication was contemplated under the Act as it stood immediately before the appointed day and when that was so, the contention of Shri Parekh that by reason of this clause the Collectors of Customs have a right to prefer an appeal under Sub-section (1) of Section 129A cannot be accepted. By removal of Difficulties Order the Central Government intends to enlarge the period of limitation in the matter of preferring an appeal against the orders passed by the Appellate Collectors and Central Board during the transitory period.

This order cannot confer a substantial right of appeal either on the Collector or on the assessee or other aggrieved person. We, therefore, reject the contention of Shri Parekh.

18. Now, coming to Sub-rule (3) of Rule 6 of the Appellate Tribunal Customs (Appeals) Rules, 1982 which provides for forms in which the appeal shall be preferred to the Appellate Tribunal and which reads: "Where an appeal under Sub-section (l) of Section 129A or a memorandum of cross-objection 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. CA-3 and CA-4 as the case may be, respectively shall be signed by the person specified in Sub-rule (2) of Rule 3." The contention of Shri Parekh was that if Collector was not to be included in the expression "any person aggrieved" appearing in Sub-section (1) of Section 129-A there is no need to make provisions similar to those found in Sub-rule 3 of Rule 6. We questioned Shri Parekh as to whether the Rules provide forms for preferring appeal or memorandum of cross-objection by the Collector. Shri Parekh conceded that no such form has been prescribed. Now if the Collector is to be considered as an "aggrieved person" for the purpose of subsection (1) of Section 129-A, Rules would have prescribed the forms in which the Collector should file an appeal to the Tribunal. The absence of a prescribed form is significant. It may be stated here that under Sub-section (3) of Section 129A the period of limitation is prescribed even in respect of appeals to be filed at the instance of the Collector against the order of the Appellate Collector and Collector (Appeals).

Apart from the above, if right of appeal is not conferred on the Collector under the Act, such a power cannot be conferred by subordinate legislation, viz. by Rules. Now, there has been no substantial change in the law in the matter of appeal after the appointed day. The only power conferred on 'the Revenue' to prefer an appeal is the power conferred on the Collector of Customs under Sub-section (2) of Section 129-A to challenge the orders passed by the Appellate Collector and Collector (Appeals). If the intention of the Parliament was that there should be right of appeal to 'the Revenue' against the order passed by the Central Board of Excise & Customs, a specific provision would have been enacted similar to the provisions of Sub-section (2) conferring a right of appeal either on the Collector or Central Government. The same has not been done. We have pointed out even under the Act, as it stood before the appointed day, the Board was constituted as a final authority in the matter of appeal. No doubt, the Central Government had authority to revise the order of the Board. If the Parliament in its wisdom had taken away the power of the Central Government to scrutinise the order of the Central Board of Excise and Customs, that remedy cannot now be provided by extending the scope of the provisions of Section 129-A, 19. The Customs Act defines the powers and functions of all the authorities viz. the Central Government, the Board and the Collector of Customs and other officers of Customs besides the Appellate Authorities. Section 5(1) of the Act provides "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." Subsection (2) reads "an officer of Customs may exercise the powers and discharge the duties conferred or imposed under this Act on any other officer of Customs who is subordinate to him". The Board is an authority superior to the Collector of Customs. When that is so, it is unthinkable that right to appeal is conferred on the Collector against a decision or the order of the Board. As has been stated earlier, the Parliament has taken sufficient care to safeguard the interests of 'the Revenue'. It conferred a power on the Collector of Customs to prefer an appeal against the order passed by the Appellate Collector and Collector (Appeals) vide Sub-section (2) of Section 129-A. It conferred on Board a power to examine the records of the proceedings of the Collector for the purpose of satisfying itself as to the legality or propriety of the decision or order of the Collector as an adjudicating authorities.

Similarly, the Collector was also conferred with the power to examine the records of the proceedings by an adjudicating authority subordinate to him for the purpose of satisfying himself as to the legality and propriety. The Board as well as the Collector were further given powers to direct their subordinates to prefer appeals. The Parliament did not consider it necessary to confer a right of appeal on 'the Revenue, against the orders passed by the Board u/s 128 or Section 130 as they stood immediately before the appointed day. The need for providing an appeal against the order of the Appellate Collector and Collector (Appeals) is discernible. The right to appeal against the order of Collector (Appeals) was conferred on the Collector of Customs because after the appointed day the Board has not been conferred with the power of adjudication.

19. The Customs Act is a fiscal statute. The executive officers of the Customs Department perform dual functions. They perform both administrative or executive and quasi-judicial functions. Since the power of adjudication is conferred on the executive officers, the necessity to provide an appeal at the instance of 'the Revenue' was probably not considered necessary. But then prior to the appointed day, revisional power has been conferred on superior authorities. Even after the appointed day, as pointed out earlier, the Board as well as the Collector could examine the proceedings of their subordinates. Having regard to the Scheme of the Act, both prior to and after the appointed day, we are of the considered view that the expression "aggrieved person" appearing in Sub-section (1) of Section 129-A does not take within its ambit 'the Revenue'. Therefore we hold that the present appeals are not maintainable.

20. Now coming to the second question, viz., locus standi of the' Collectors to prefer appeals against the orders of the Board, Shri Parekh, the learned Advocate for the Appellants, contended that the Collectors have filed appeals in their capacity as Executive Collector and in the interest of revenue. We are unable to appreciate this contention. Even though Shri Parekh contended that the Collectors acted as executive Collectors, we cannot forget that the Collectors in the present case did function as quasi-judicial authorities. The Board in exercise of its appellate power set aside the orders passed by the Collectors. There is no rule of law or principle of equity which provides the judicial authority after having exercised its judicial function and after becoming functus officio to agitate the correctness of the order passed by a duly constituted appellate authority.

21. There is a clear distinction between judicial authority and executive authority though the two powers vest in the same person. Once the judicial function has been exercised in qua judicial matters, that authority becomes functus officio, whether that order is right' or wrong, is not, therefore, the concern of that very authority. If the appellate authority has given its decision, then it is not for the judicial authority (Collector) to question the correctness of the order of the appellate authority but only to execute or carry out the order of the appellate authority. In the garb of executive powers the person who acted as an adjudicating authority, cannot examine or scrutinise the order of the appellate authority just because the order of the appellate authority is not in conformity with its view. Such a procedure if allowed will make a mockery of justice. We refuse to lend ourselves to an interpretation where that would be the result.

22. Now reverting again to the second question, viz. locus standi of the Collectors to prefer appeals against the orders of the Board, the contention urged by Shri Parekh was that the Collectors have filed the appeals to safeguard the interests of 'the Revenue' and in their capacity as executive Collectors. Let us examine the validity of this contention. It cannot now be disputed that right to litigate is not a legislative or a judicial power. It is, therefore, an executive power.

Under Article 53(1) of the Constitution of India, the executive power of the Union vests in the President and the same shall be exercised by him either directly or through the officers subordinate to him in accordance with the Constitution.

"There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice." "All executive action of the Government of India shall be expressed to be taken in the name of the President." "The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business " Thus it is clear that the business of Government of India shall have to be performed in the manner specified in the Rules of Business. The conduct of the business of Government of India is allocated to various Ministers. In other words, it is distributed among the several Ministers. The Rules of Business enable a Minister to exercise the power allocated to him. Rules of Business may also authorise a particular official of the Ministry, (say, Secretary, Joint Secretary) to take any particular decision or discharge any particular function.

When any such official does any act so authorised, he does so not as a delegate of the Ministers, but on behalf of the Government of India. In short, the act of the Minister or the official who is authorised by the Rules of Business is the act of the President or of the Government of India in whom the function or power is vested by the Constitution or by any statute.

23. No Collector in our opinion is competent to take a decision as to whether an appeal should be filed or is he competent to prefer any appeal against the decision of the Board because it has not been shown to us that the Rules of Business of the Government of India authorised the Collector of Customs to take such a decision or to prefer such appeals. The decision of the Collectors may be bona fide even be laudable but then it should have the legal sanctity. If it were possible for the Collectors to take decisions on their own every subordinate of the Collector can also file an appeal against the order of the Collector under the guise that interest of 'the Revenue' required filing of such an appeal. This will not only lead to indiscipline, but will have the effect of nullifying the constitutional provisions.

24. In the absence of any rule or authority, authorising the Collector to take a decision to prefer appeals against the orders passed by the Board, we have no hesitation in holding that the Collector of Customs have no locus standi to prefer these appeals.

25. For the reasons stated above, we hold that the present appeals are not only not maintainable but incompetent and therefore we dismiss them all.

26. Before parting, we make it clear that no observation in this order shall prevent the appellants from taking recourse to any other remedy which is open to them in law.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //