TMI Blog2010 (7) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Service Tax Appellate Tribunal South Zonal Bench, Shastri Bhavan Annexe 1st Floor, 26, Haddows Road Chennai, 600 006. W.P.NO.29129 OF 2008 M/s.Biomed Hitech Industries Limited Rep.by its Executive Director No.475, Old Mahabalipuram Road Sholinganallur, Chennai 600 119. Versus 1.The Commissioner of Customs (Sea Port-Export) Custom House, No.60, Rajaji Salai Chennai 600 001. 2. The Assistant Commissioner of Customs (EPCG) O/o. The Commissioner of Customs (Sea Port-Export) Custom House, No.60, Rajaji Salai Chennai, 600 001. For appellant in C.M.A.No.486/2009: Mr.K.Ravichandra Babu For respondents in W.P.No.29129/2008: SCGSC For 1st respondent in C.M.A.No.486/2009: Mr.V.Ramachandran For petitioner in W.P.No.29129/2008: Senior Counsel for Mr.S.Shankaravadivelu JUDGMENT M.M.SUNDRESH, J In view of the fact that the parties to both the cases and the issues involved are one and the same, they have been taken up together for disposal. Since the decision in the writ petition depends upon the decision in the appeal, the issue raised in the appeal is taken up for consideration and the parties therein are arrayed as such for the disposal of both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal is right in dismissing the appeal as not maintainable since the appeal was filed against an order passed by the Chief Commissioner of Customs? b. Whether the Tribunal is right in ignoring the provisions of Section 5(2) of the Customs Act, 1962 empowering an officer of Customs to exercise the powers and discharge the duties conferred or imposed under the Customs Act on any other officer of Customs who is subordinate to him? c. Whether the Tribunal is right in not considering that in the case on hand the Chief Commissioner of Customs passed the order in appeal exercising is powers as Commissioner of Customs? d. Whether the order passed by the Tribunal is inconsistent with the earlier orders in which the Tribunal entertained appeals against the orders of the Chief Commissioner?" 4. Similarly seeking the release of bank guarantees furnished by the first respondent, a writ petition was filed by him based upon the order passed in his favour. In order to appreciate the issue involved in the present appeal, the provisions of the Customs Act, 1962 require consideration. 5. Chapter-I deals with the definitions of the words as well as the the authorities covered under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is an hierarchy of officers in the Customs Department. An officer higher in the rank can exercise the power of the officer immediately lower in the rank. The said power is to be exercised for administrative contingency and convenience and expediency as the case may be. However a Commissioner (Appeals) being an officer dealing with the quasi judicial power of adjudication cannot do the work of the other officers except those specified in Chapter-XV and Section 108 of the Act. 7. Chapter-15 speaks about the Appeals. Section 128 of the Act provides for an appeal to the Commissioner (Appeals). Such an appeal is provided from an order passed by an officer lower in the rank than a Commissioner of Customs. Section 129 of the Act speaks about the Appellate Tribunal. The Appellate Tribunal would consist of judicial and technical members making it clear that it is an appellate adjudicating forum. Section 129-A makes it clear that an appeal would lie against the order of the Commissioner of Customs as an adjudicating authority. In other words, when a Commissioner of Customs is not an adjudicating authority then no appeal would lie and that is a reason why the Commissioner (Appeals) ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat when the Chief Commissioner of Customs has exercised the power of the Commissioner such a power can only be exercised as a Commissioner of Customs since there is no independent power to exercise such a power. Therefore the Chief Commissioner of Customs has exercised the power as the Commissioner of Customs in the capacity of an adjudicating authority and hence the appeal is maintainable under Section 125-A. The learned counsel also submitted that the Chief Commissioner of Customs has only stepped into the shoes of the Commissioner as an adjudicating authority and the said power has been exercised in pursuant to the direction issued by the Central Board of Excise and Customs. According to the learned counsel in as much as Section 129-A is very clear the appeal is maintainable. The learned counsel further added that in a case where a construction of a provision would lead to manifest contradiction and against the purpose of the enactment the same would be avoided. In support of his contention, the learned counsel has relied upon the judgment of the Apex Court in SURJIT SINGH v. MAHANAGAR TELEPHONE NIGAM LIMTIED [(2009) 16 SCC 722]. Hence the learned counsel contended that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RATE OF ENFORCEMENT]" The learned senior counsel also submitted that an appeal being a creation of the statute, a right of appeal cannot be contrary to the statute and therefore in the absence of any such provisions a party cannot seek an appeal as a matter of right. In support of the said contention, the learned senior counsel has relied upon the following judgments : "1988 VOL.169 ITR 89; 1995 VOL.213 ITR 46; 2001 VOL.124 STC 285 [STATE OF HARYANA v. MARUTI UDYOG LTD. AND OTHERS]; AIR 2003 S.C. 1515 [MUNICIPAL CORPORATION OF DELHI v. INTNL. SECURITY and INTELLIGENCE AGENCY LTD.]; (2008) 4 SCC 91 [SUMITOMO CORPORATION v. CDC FINANCIAL SERVICES (MAURITIUS) LTD.] and (2009) 10 SCC 531 [SUPER CASSETTES INDUSTRIES LIMITED v. STATE OF UTTAR PRADESH AND ANOTHER]" Hence the learned senior counsel submitted that the appeal will have to be dismissed and consequentially the writ petition will have to be allowed. 15. As discussed above, a conjoint reading of Section 2(1), 2(8) under Chapter-I and Section 3, 5(2) of Chapter-II and Section 122 would make it clear that a Commissioner of Customs is an adjudicating authority except in the case of Commissioner (Appeals). In other words, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at such an interpretation of Section 5(2) would rule out any such submission of anomaly while considering an adjudication order passed by Chief Commissioner of Customs by stepping into the shoes of Commissioner of Customs. Therefore a Chief Commissioner of Customs also would include a Commissioner of Customs in a case where he exercises the power of the Commissioner of Customs (Adjudication). In such an eventuality the Chief Commissioner of Customs becomes a proper officer and an adjudicating authority. In other words, the Chief Commissioner of Customs steps into the shoes of the Commissioner (Adjudication) and acts in such a capacity. 16. As observed earlier such a provision is made in order to meet a different situation that would arise for exercising such a power. That is exactly the reason why the Central Board of Excise and Customs has requested the Chief Commissioner of Customs to exercise the power of the Commissioner. 17. Similarly, a proper reading of Chapter-XV would show that an appeal would lie against the adjudicating authority namely the Commissioner (Adjudication) to the Tribunal. Much importance will have to be given the word "as an adjudicating authority". In a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Customs in the said capacity. 21. The learned senior counsel has also submitted that the power exercised by the Chief Commissioner of Customs is the one akin to the power exercised by the Hon'ble High Court under Section 24 of the Civil Procedure Code. The said contention of the learned senior counsel in our opinion cannot be countenanced. The power exercised by the Hon'ble High Court under Section 24 of the Civil Procedure Code is an independent power exercised as a High Court. In other words, when a proceeding has been transferred or withdrawn a case from a subordinate Court the High Court decides the case as an High Court and not otherwise. However in the present case on hand the Chief Commissioner exercised the power of Commissioner Customs (Adjudication) and not in his own capacity. 22. In the present case on hand the Chief Commissioner of Customs decided the case as a Commissioner (Adjudication) and not on his own. The further contention of the learned senior counsel that if the Chief Commissioner of Customs exercises the power of an officer subordinate to the Commissioner (Adjudication) then the same cannot be appealled under Section 128 before the Commissioner (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons would clearly establish the object of the Act that is to provide a mechanism through which the dispute should be resolved. That is a reason why it has been stated under Section 129 of the Act that the decision of the Appellate Tribunal is final. That is also the reason why a judicial member is made as a part of the Tribunal. The role of contextual interpretation requires that the Court should examine every word of the statute in its context, while keeping in mind the provisions thereof and the mischief intended to be remedied. Therefore we are of the opinion that considering the object and the purpose for which Section 129-A is introduced the same will have to be given proper effect and meaning. Accordingly we hold that an appeal would lie under Section 129-A of the Act. 26. Principles of Literal Construction: As observed earlier the Doctrine of literal construction would also mean that the appeal is maintainable in the present case on hand. If we are to construe the Commissioner (Adjudication) as the one who would also include a Chief Commissioner of Customs acting as Commissioner (Adjudication) then there is no difficulty in holding that the appeal is maintainable. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates (1979-1981 batch) to a two-year training course and graduates (1980-1981 batch) to a one-year training is in due compliance with Rule 10 of the 1969 Rules and Rule 18 of the 1974 Rules and the seniority of both the batches has been rightly settled vide Orders dated 12.10.1982 and 05.03.1987 and the Government has committed an error in unsettling the seniority under its proceedings dated 29.09.1993." Therefore a statute has to be read in its entirety and not in isolation and a provision of law has to be seen in the context in which the same is introduced. 28. JUSTICE FRANKIN IN GUISEPPI v. WALLING, 144F (2d) 608 (pp 620), has observed as follows: "The necessary generality in the wordings of many statues, and ineptness of drafting in others frequently compels the Court, as best at they can, to fill in the gaps, an activity which no matter how one may label it, is in part legislative. Thus the Courts in their way, as administrators, in their way perform the task of supplementing statutes. In the case of Courts we call it "interpretation" or "filling the gaps" in the case of administrators we call it "delegation" or authority to supply the details." 29. JUSTICE G.P.SINGH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the enactment is what is called imperative or only directory." 34. OLIVER WENDELL HOLMES has stated thus: "It is sometimes more important to emphasise the obvious than to elucidate the obscure." 35. The said principles have also been approved in JENANY J.R. v. S.RAJEEVAN AND OTHERS [(2010) 5 SCC 798]. In SPECIAL LAND ACQUISITION OFFICER v. KARIGOWDA AND OTHERS [(2010) 5 SCC 708] it is held as follows: "30. At the cost of some repetition, we may notice that the provisions of Sections 23 and 24 of the Act have been enacted by the legislature with certain objects in mind. The intention of the legislature is an important factor in relation to interpretation of statutes. The statute law and the case law go side by side and quite often the relationship between them is supplementary. In other words, interpretation is guided by the spirit of the enactment. Interpretation can be literal or functional. Literal interpretation would not look beyond litera legis, while functional interpretation may make some deviation to the letter of the law. Unless the law is logically defective and suffers from conceptual and inherent ambiguity, it should be given its literal meaning. Where t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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