1. Under Section 131 of the Customs Act, 1962 (hereinafter referred to as the Act), V.V. Dabke & Sons, Customs House Agents, Bombay hereinafter referred as the agents filed a revision petition before the Government of India on 15th June, 1981, contesting Order in Appeal No.S/49-1041/80-AIR dated 25th of February, 1981 passed by the Appellate Collector of Customs, Bombay by which he rejected the Agents' claim to refund of duty in respect of designs and drawings imported by Air-Bill of Entry Cash No. 2248 of 27th December, 1979. The revision petition stands transferred to the Tribunal under Section 131-B of the Act as appeal and is disposed of as such.
2. We consider necessary not only to reproduce the petition, order of the Appellate Collector of Customs but also the order of the Assistant Collector of Customs rejecting the refund claim with a purpose to show that the Agents filed appeal in their own right without even indicating as to who were the real importers who could be said to be aggrieved by the order of rejection of refund claim and then rejection of the appeal against such order : "The Joint Secretary to the Government of India, Ministry of Finance (Department of Revenue and Insurance), New Delhi.
Sub : Refund of Auxiliary Duty in respect of Designs and Drawings imported by air-Bill of Entry Cash No. 2248 of 27th December, 1979.
We beg to approach the Government of India against the order in Appeal No. S/49-1041/80 AIR dated 25-2-1981 passed by the Appellate Collector of Customs, Bombay. We enclose the following : The ground of the application is the interpretation of the terms "Charts and Plar s" used in the Notification No. 95 of 12-5-1978 as amended on 9-12-78. Under this rotification the articles are exempt from the levy of auxiliary duty. The applicants have imported the same articles with the description "designs and drawings" and claimed the exemption.
The Appellate authority has held that the words charts and plans do not include the drawings and designs. We quote below the equivalents of the word design from the famous Oxford dictionary.
Here the word plan is specifically given as an equivalent for the word "Design".
The learned Appellate Collector has also given an explanation of the word plan and this explanation fully agrees with the meaning of the word design. The word plan shows intended outline or a sketch and the word design shows the same thing. The word plan is used for representation on a plain surface and the design also does the same thing. It also indicates representation on a plain surface. The word design can also be used for a building or a project. Hence the terms plan and design are congruent in meaning.
The Appellate Collector has erred in holding them to be different and dissimilar.
The word Drawing is only a part of the Plan or Design. The Plan or Design is a broader concept and the drawing forms a part of it. The term plan therefore also covers the same.
The applicants therefore pray that the correct implication of the terms plan and design may be appreciated and the articles imported may be held to be covered by the notification. In effect the amount of auxiliary duty recovered may be ordered to be refunded.
We enclose the invoice, duty bill and copy of the Notification No. 95 and 231.
Exemption of Auxiliary duty is claimed vide Notification 95/78 as amended by Notification 231/78. The Sl. No. of notification claimed 7.
As per this, the goods which are so exempted are paper money, books printed including covers for printed Books, Periodicals, Maps, Charts, and Plans etc.
Heard appellants. They reiterated the arguments. The impugned goods are worded 'Drawings and Designs' Appellants claim that Drawings and designs are same as Charts and Plans. 'Charts' refer to a system of representation of facts/statistics in a tabular method. Hence 'Charts' will not specifically cover drawings or designs. As regards 'Plans'.
Plan refer to normally to a representation of anything projected on a plain or flat surface. Plans also usually refer to the representation of buildings or such civil engineering constructions. Hence, drawings or designs of a machine does not specifically come under the cover of word 'Plan'. As such in the absence of drawings, designs specifically shown in the said notification, the appeal is not merited.
The goods imported are complete set of printable drawings and designs for manufacture of Plain Parallel carding and lapping machine These were assessed to duty u/i 49.04/06 and 5% auxiliary duty was charged.
It is the contention of the importers that these goods are exempt from the whole of auxiliary duty in terms of Notification No. 231 dated 9-12-78. As per this Notification, it may be seen that this is an amendment to the, previous Notification No. 95 dated 12-5-78. In terms of this Notification only printed books, periodicals and maps are exempt from auxiliary duty. Since drawings and designs are not specified they are therefore correctly chargeable to auxiliary duty.
Therefore, the assessment is in 'order and the refund claims may be rejected.
M/s. V.V. Dabke & Sons, Khan Manzil, 1st floor, Calicut Street, Ballard Estate, Bombay-38, with reference to their letter No...dated...
3. Besides, from the records, we find that even the fee of Rs. 125/- has been paid by the Agents in their own name. Copy of triplicate receipt is at page 5 of the Tribunal record file.
4. Things may have been liable different if there was no indication at all as to who were the importers because in that case a presumption could not be drawn that the Agents were not the importers themselves.
But, from letter dated 24th January, 1983 addressed by the Agents to the Assistant Registrar of this Tribunal, the importers are mentioned in an indirect fashion in subject/ reference column, which we also like to notice as follows : Re : Refund of Auxiliary Duty in respect of Designs and Drawings imported by air-Bill of Entry Cash No. 2248 of 27th December, 1972.
A/c. M/s. Accurate Engineering Co. Pvt. Ltd. Pune.
We thank you for your letter dated 6th January, 1983 informing us that the appeal is fixed for hearing at 10-30 A.M. on 1-2-1983.
Please be informed that we have fully explained our stand in our appeal and we have nothing further to add in this matter, and as such our representatives will not be attending the hearing. We, therefore, request the Tribunal to take a decision on the basis of our explanation already submitted and we may be kindly informed.
In this case, there is no question of the classification or the valuation of the goods. The only dispute is regarding the interpretation and the scope of the term "Charts and plans" used in the notification vis-a-vis drawings and designs shown in the invoice. We have already submitted our contention on this point.
We are submitting five copies of this letter so that a copy can be attached to each set of the revision application.
5. Interestingly, in paras 2 and 3 above the Agents informed the Registry that the subject matter of the appeal stood fully explained in the Memo and nothing further was to be added and as such no representative of theirs will be attending the hearing fixed for 1st February, 1983. Such position taken also indicate that the appeal has been filed by the Agents in their own right and name.
6. Since the appellants do not want to be heard, the appeal is being decided on merits ex parte under Rule 20 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982. As for the Revenue, Shri N. Chatterjee, D.R. was present and submitted that the appeal was not maintainable at all as the Agents could not be said to be the aggrieved person to be entitled to file revision petition before the Government in the first place.
7. It may be clarified at this stage that there is no power of attorney in favour of the Agents and, therefore, they at best could be said to be deriving their authority from the provisions of Section 147 read with Section 146. We consider necessary to notice the said provisions and for that purpose these are reproduced below : - "147. Liability of principal and agent.-(1) Where this Act requires anything to be done by the owner, importer or exporter of any goods, it may be done on his behalf by his agent.
(2) Any such thing done by an agent of the owner, importer or exporter of any goods shall, unless the contrary is proved, be deemed to have been done with the knowledge and consent of such owner, importer or exporter, so that in any proceedings under this Act, the owner, importer or exporter of the goods shall also be liable as if the thing had been done by himself.
(3) When any person is expressly or impliedly authorised by the owner, importer or exporter of any goods to be his agent in respect of such goods for all or any of the purposes of this Act, such person shall, without prejudice to the liability of the owner, importer or exporter, be deemed to be the owner, importer or exporter of such goods for such purposes : Provided that where any duty is not levied or is short-levied or erroneously refunded on account of any reason other than any wilful act, negligence or default of the agent, such duty shall not be recovered from the agent unless, in the opinion of Assistant Collector of Customs, the same cannot be recovered from the owner, importer or exporter".
"146. Custom house agents to be licensed. -(1) No person shall carry on business as an agent relating to the entry or departure of a conveyance or the import or export of goods at any customs-station unless such person holds a licence granted in this behalf in accordance with the regulations.
(2) The Board may make regulations for the purpose of carrying out the provisions of this section and, in particular, such regulations may provide for- (a) the authority by which a licence may be granted under this section and the period of validity of any such licence ; (c) the qualifications of persons who may apply for a licence and the qualifications of persons to be employed by a licencee to assist him in his work as an agent; (d) the restrictions and conditions (including the furnishing of security by the licencee) subject to which a licence may be granted ; (e) the circumstances in which a licence may be suspended or revoked ; and (f) the appeals, if any, against an order of suspension or revocation of a licence, and the period within which such appeals shall be filed." Dealing first with Section 147. Sub-section (1) replaced Section 203 of the Sea Customs Act, but the procedural provision regarding production of authority has been omitted. It is in view of this that absence of authority is not be considered of any significance in the present case.
The question is whether Agent can file appeal in his own name and right, in relation to imports exports by his principal without even stating that the beneficiary is the importer or someone else. According to us, the answer simply has to be in the negative. The Agent's implied authority in terms of the aforesaid provisions extend only to such Acts as may be required in terms of the act, to be done by the owner, importer or exporter as the case may be of any goods if actually done on his behalf by his Agent. Sub-section (2) makes the Principal liable for the actions of his Agent. Such provision apparently was considered necessary so that the Principal does not escape the consequences of what has been done by his Agent. An application for refund or initiation of further proceedings pursuant thereof are not, however, acts required mandatorily to be done in terms, of any of the provisions of the Act. It is for the importer or exporter as the case may be to apply for refund and or pursue the matter further if he so chooses.
Coming to Sub-section (3), before its enactment it was referred to the Parliament Select Committee and it may be in the fitness of things that relevant portion of the report is also brought in focus below : "The Committee feel that it should be clarified that if the owner, importer or exporter proves to the contrary, the presumption under Sub-clause (2) should not be raised against him. They also feel that it should further be provided that where any duty is not levied or short levied or erroneously refunded on account of any reason other than any wilful act, negligence or default of the agent, such duty should not be recovered from the agent unless, in the opinion of the Assistant Collector of Customs the same cannot be recovered from the owner, importer or exporter." We like to make it clear that the basis of our decision is not the report of the Select Committee.
8. From the above, we notice that the obligation cast on the Agent by virtue of Sub-sections (1) and (2), to some extent, stand diluted by the provision of Sub-section (3) inasmuch as it is provided that unless there is any wilful act, negligence or default of the Agent, he should not be made liable for recovery of duty unless, in the opinion of the Assistant Collector of Customs, the same cannot be recovered from the owner, importer or exporter. We find nothing in the scheme of Section 147, which can be considered to stipulate any right having been conferred even by implication on the Agent to do acts like filing of refund claim on his own right and further filing appeal and contesting that refund be directed to be issued to him. We have already observed above that there is no power of attorney filed and therefore the Agent could not be said to be acting under any other provision but under Section 147.
9. Under Section 146, the business contemplated as an Agent is in relation to entry or departure of a conveyance or the import or export of goods at any Customs Station. Clause (f) of Sub-section 2 talks of an appeal by the Agent against his own suspension or revocation of his licence and we fail to see any projection of his right to file an appeal in relation to imports and/or exports of his Principal.
10. Another aspect which strikes us is that with the setting up of the Appellate Tribunal with effect from 11th of October, 1982, Customs (Appeals) Rules, 1982 (hereinafter referred to as the Customs Rules) have become operative. Appeal to the Appellate Tribunal is provided under Section 129A0) of the Act and under the Customs Rules Form No.C.A. 3 is prescribed for filing such appeals. In case of appeals other than the ones filed by Collector of Customs, the grounds are required to be signed and verified by the appellant in accordance with the provisions as contained in the relevant provisions of the said Rules being : "(2) The grounds of appeal and the form of verification as contained in Form F. No. C.A.-1 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. -1 shall be filed in duplicate and shall be accompanied by a copy of the decision or order appealed against." 11. From the above we notice that though with effect from 1lth of October, 1982 a precise and strict procedure has been laid down as to who would sign appeals in all categories of persons, which procedure was certainly not there earlier, and, therefore, the Agent or an authorised person could sign appeal on behalf of an appellant but it cannot be over-emphasised that appeal necessarily had to be by the appellant. The provisions of Section 147 have remained unchanged.
Therefore, if we are to assume that under Section 147 of the Act, an Agent can file appeal in his own right in respect of imports or exports of his principal, we must also presume that the Custom (Appeals) Rules, 1982 are either redundant or are in direct conflict with Section 147 which presumption we are not prepared to make as redundancy cannot be attributed in respect of enactments and statutory rules made thereunder.
12. Repeating ourselves, we are not importing the Custom (Appeals) Rules of 1982 operative from 11th October, 1982, in respect of earlier preceed-ings and, therefore, are not questioning the validity cf appeals where these are signed by Agents, but filing of appeals by agents in their own rights simply cannot be said to be contemplated by any of the provisions of the Act. Therefore, finding no locus standi of the Agents in respect of import by M/s. Accurate Engineering Co. Pvt.
Ltd., Pune, we reject the appeal as being not maintainable.