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TMI Blog1986 (8) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... "Every proceeding which is pending immediately before the appointed day before the Central Government under Section 131, as it stood immediately before that day, and any matter arising out of or connected with such proceeding and which is so pending shall stand transferred on that day to the Appellate Tribunal and the Appellate Tribunal may proceed with such proceeding or matter from the stage at which it was on that day as if such proceeding or matter were an appeal filed before it : Provided that if any such proceeding or matter relates to an order where, - (a) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under Section 125; or (b) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of Customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (c) the amount of fine or penalty determined by such order, does not exceed ten thousand rupe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han Rs. 10,000/-. Shri Thakur contends to the contrary and relies upon the reasonings in the Sudesh Rattan Mahajan's case in support thereof. 6. The argument of Shri Chakraborti is that the intention of the legislature in enacting Section 131B of the Customs Act was that the cases pending with the Government and which involve high stakes are to be transferred for disposal by the Tribunal but that cases where stakes are not high may be retained and disposed of by the Government without a transfer. According to him, this object would be frustrated if the word "or" in the proviso to Section 131B (2) is to be construed as a disjunctive as was done in the Sudesh Rattan Mahajan's case. Therefore, in effect, he also concedes that if the word "or" is read in the normal grammatical sense, the result would be as was held in Sudesh Rattan Mahajan's case. But, according to him, such a construction would lead to an absurdity when viewed in the background of the object of the legislation and, therefore, the word "or" should be read as "and". According to him, we should start reading each part of the proviso and its applicability to the facts of the case, and once' any particular proviso is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court had held that the word was disjunctive and not conjunctive. 10. For the reasons stated earlier, we are satisfied that the conclusion in the Sudesh Rattan Mahajan's case was proper and the said decision does not require any reconsideration. We have now, therefore, to' consider the effect of the interpretation in that decision on the facts of the appeals before us. We have to decide whether the appeal relating to Shri Daya Lal Shah (in which alone penalty had been levied, which penalty was less than Rs. 10,000/-, no penalty having been levied on the appellants in the other two appeals) is to be retransferred to the Central Government or whether all three appeals require such retransfer. 11. For determination of this question, we have to look into the words of Section 131B (2) and the proviso thereto. Under the main provision, every proceeding which was pending with the Central Government immediately before the appointed date, as also any matter arising out of or connected with such proceeding, shall have to be transferred to the Tribunal. The proviso lays down that where any such proceeding or matter relates to an order, the value of the goods or the difference i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them and their interpretation of decision of the above mentioned case. I however very much regret my inability to agree to the same for the reasons mentioned below. 15. It is well known that the interpretation of a particular ruling or decision has to depend on the facts and circumstances of that particular case in which that decision is given. It need not be mentioned that the facts and circumstances of each case are generally different and, therefore, before applying the ratio of decision of one case to another case, care has to be taken to ensure that the facts and circumstances of both the cases are the same or at least similar. In this connection it may be mentioned that if there is any observation in a ruling or a decision which is not warranted by the facts and circumstances of the particular case, the same is known as obiter dicta, and properly speaking it cannot be said to be the finding of the Court and binding on any authority. Therefore, in order to properly interpret a particular decision care has to be taken to find out whether any observation by the learned Court is obiter dicta or not. The determination of this question, however, will take me to the examinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only sub-clause (c) as mentioned above. In para Nos. 10 and 11 of this order they have gone to the extent of interpreting the word 'or' between sub-clauses (a) (b) and (c). Proceeding to interpret the meaning of the word "or" occuring between these clauses the learned Members of the NRB held that there also the expression "or" was disjunctive and not conjunctive as in the case of the word "or" used between "fine" and "penalty" in sub-clause (c). I can do no better than to quote the concluding portion of para 10 in this connection. It runs as follows : "We see no reason, therefore, to substitute the word "and" for "or" either between sub-sections (a) and (b) or (b) and (c) or (c) itself with a view to restrict such jurisdiction and to enlarge that of the Tribunal beyond what was plainly intended." 18. Similarly, in the beginning of para 11 it has been observed as follows : ' "If perchance we are to read "and" in the places where 'or' occurs in the proviso to Section 131B it would mean and imply that the conditions in all the sub-clauses (a), (b) and (c) will have to be cumulatively fulfilled before the Central Government can exercise any jurisdiction in the proceedings pend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stituted. The question is what was the consideration with the Central Government for introducing these changes by Finance (No. 2) Act, 1980? It may be mentioned here that by this amendment the Appellate Tribunal was constituted by associating Judicial Members with the same in order to ensure that the cases of the persons concerned may not be left entirely into the hands of the officers belonging to the department. At the stage of the Appellate Tribunal by associating Judicial Members, an attempt was made to ensure that the cases should be decided strictly according to law and would be interpreted also properly. It was expected that this Tribunal being quasi-judicial in nature, will conform to established judicial procedure. In the long run it was calculated to inspire confidence in the minds of the public in regard to the decisions which it records. It was in this background that these amendments were brought about. 23. So far as the legislative intent in introducing Section 131B is concerned, there is a clear mention in it that when the amount does not exceed Rs. 10,000/-, such proceedings or matter shall continue to be dealt with by the Central Government as if the said Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfiscated absolutely; or (b) the difference in duty involved; or (c) the amount of fine or penalty does not exceed Rs. 10,000/- such proceedings or matter shall continue to be dealt with by the Central Government as if Section 131, as it stood before the appointed date, was never substituted. Under these circumstances there may be a case where there may be absolute confiscation of goods worth more than Rs. 10 lakhs but no fine or penalty is imposed, can it be the intention of the legislature that such cases are still to be left with the Central Government since no fine or penalty is involved? Similarly, there may be a case in which the duty involved may be Rs. 10 lakhs or above, but no absolute confiscation or fine or penalty is involved, can it be said that in a situation like this the intention of the legislature was that such a case could still continue to be with the Central Government since no amount of fine or penalty has been imposed. Similarly, there may be a case when an amount of fine of Rs. 11,000/- is involved without any absolute confiscation or duty or penalty. Alternatively, there may be a case in which a penalty or more than Rs. 10,000/- is involved without any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellate Tribunal. In my view, under the given situation this would be the most reasonable interpretation of Section 131B of the Customs Act, in harmony with the legislative intent. 27. In the above view of the matter, since the value of the goods confiscated absolutely is Rs. 1,42,000/- approximately, I hold that in terms of sub-clause (a) to the second proviso to Section 131B, the jurisdiction to hear and decide these appeals vests with the Appellate Tribunal. These appeals therefore need not be transferred from the Tribunal. Dated, 24th July, 1986. Sd/- (B.PRASAD) MEMBER (JUDICIAL) ORDER In view of the majority decision of this Bench it is ordered that the papers in all these three appeals be returned back to the Central Government who alone will have jurisdiction to deal with the matter. EDITOR'S COMMENTS It is submitted that minority decision of Shri B. Prasad, Member (J) seems to be more appropriate and rational. Sub-section (2) of Section 131B provides for transfer of 'every proceeding' pending with the Central Government on the appointed day to the Appellate Tribunal. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of different clauses contained in exclusion provisions has taken the view that such clauses are independent of each other. This decision has now been confirmed on appeal in 1987 (30) E.L.T. 641A (Tribunal). There is another aspect of the matter. The Tribunal decision on Sudesh Rattan Mahajan [1983 E.L.T. 2517] was a decision by North Regional Bench consisting of two members. Subsequently, this decision was doubted by East Regional Bench consisting of another two members in the present appeal. Consequently, the matter was referred to the Present Bench of three members in which one member has recorded a dissent with the result that the Sudesh Rattan Mahajan's case has been endorsed only by two members. Now a peculiar situation has arisen wherein the two members expressing their doubts as to the correctness of the said decision have been over-Ruled by another set of two members. It is now incumbent either to reconsider the decision in this case and in the case of Sudesh Rattan Mahajan v. Collector [1983 E.L.T. 2517] or to enforce the second proviso to Section 129A (1) of the Customs Act, 1962, by putting all Regional Bench appeals falling within the mischief of the said second provi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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