TMI Blog1992 (5) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... goods on payment of redemption fine of Rs. 50,000/- without imposing any penalty. During course of adjudication proceedings in the case of other Importer, it was found that the value of Video Loader was declared on the lower side. Printed price list from manufacturers was obtained wherein price of the same is shown as U.S. $ 15,000/- as against U.S. $ 4,000/-. Since the adjudication proceedings were already completed in the present case and the Collector of Customs was not satisfied with the decision of the Adjudicating Authority, he has exercised his powers under Section 129D(2) of the Customs Act and directed the Deputy Collector to apply to the Collector of Appeals for determining certain points said to arise out of the decision of the Deputy Collector. Accordingly, it was filed before the Collector (Appeals). In the meanwhile, the party approached the High Court for release of the goods by way of Writ since the goods were not released despite the payment of redemption fine and the High Court ordered for release of the goods observing that the mere pendency of the application under Section 129D(2) or the action of the Collector in directing the Deputy Collector of Customs to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector of Central Excise, Calcutta - 1985 (22) E.L.T. 216 (Tribunal). 3. Deputy Commissioner v. Dhanalakshmi Vilas Cashew Co. - 1969 (24) S.T.C. 491(S.C.). 4. D.C.W. Ltd. v. Collector of Central Excise, Madars - 1988 (35) E.L.T. 167. 5. Collector of Customs, Bombay v. Liwe International - 1985 (20) E.L.T. 107. 6. State v. K.M. Cheria Abdulla Co. - 1965 (16)S.T.C. 875. 7. Bala Ganesh Textiles v. C.T.O. - 1978 (41) S.T.C. 445. 8. Ganga Properties v. I.T.O. - 1979 (118) I.T.R. 447. 4. On the other hand, while countering the arguments Shri Prabhat Kumar submitted that this issue relates to valuation and this aspect was very much there in column 6 under the Head Description and Value of the goods as part of the record of proceeding before the Adjudicating Authority. Since the point of valuation was not properly considered by the Adjudicating Authority and this point arises out of the order, it was very much within the competency of Collector to initiate proceedings under Section 129D(2) of the Act and direct the concerned Adjudicating Authority to apply to the Collector (Appeals) to determine such points arise out of that order, referring to the decision in to the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal in the case of Collector of Customs v. Liwe International, Bombay cannot be relied as the earlier judicial pronouncements were neither taken note of nor considered while giving ruling with reference to Section 129D(1) of the Act. 5. We have carefully considered the arguments advanced on both sides and perused the records including citations. On going through the decisions cited by both sides, we do not find any direct decision of the Supreme Court or of any High Court with reference to Section 129D of the Customs Act, 1962. Most of the decisions cited before us were concerned with specific revision provision as envisaged either in the Income-tax or under Sales Tax Act. Other decisions including decisions of the Tribunal which were dealt with the similar provisions have proceeded to decide the issue as if it were a revision. But on going through the provisions of Section 129D of the Act, it appears to us that it is not a mere revision but something more than that Section 129D of the Customs Act, 1962 reads as under :- 129D. Powers of Board or Collector of Customs to pass certain orders. (1) The Board may, of its own motion, call for and examine the record of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing an appeal against his own order before the Appellate Authority as per the direction of the Superior Authority. Revision is different from appeal and the proceedings by way of revision may be commenced at the instance of the aggrieved party or suo moto by an authority superior to the authority which passed the order. The Superior authorities not only call for and examine the proceedings of an order passed by the subordinate adjudicating authorities but if they found that order is erroneous they themselves revise the order of the Adjudicating authorities after giving an opportunity to the other side. While under Section 129D the said authorities on examination of the records called for by them may merely direct their subordinate adjudicating authorities to have the points raised by them (the Board and the Collector) decided by the Appellate Tribunal or the Collector (Appeals) as the case may be. Since this section confers limited revisional powers to the Board and the Collector of Customs, it cannot be treated as revision provision. The title of Section 129D is not revision but that of powers of Board or Collector of Customs to pass certain orders under heading Appeals in Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudication proceedings and it was within his right to take into consideration of the additional evidence and to decide the issue either by himself or to remand the matter to the concerned Adjudicating Authority. Accordingly, the matter has been remanded to decide the case afresh after giving an opportunity to the appellants. Since we do not find any infirmity in the impugned order, the appeal filed by the appellants is hereby dismissed. Dated: 7-8-1991 (GA. BRAHMA DEVA) MEMBER (J). 6. [Dissent per : P.C. Jain, Member (T)]. - I have carefully read the order proposed by my learned brother, Shri G.A. Brahma Deva, Judicial Member but I regret I am unable to persuade myself to agree with the findings and reasons given therein. 7. Since the facts have already been set out in the order of the learned brother, I need not recapitulate them here. It is true that Section 129D is not exactly on the pattern of old Section 130 of the Customs Act, nor is it on the general pattern of revisional power where a superior authority has the power to both examine the record of the proceeding leading to the order of an inferior authority from the point of view of any illegality or any impro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of State v. K.M. Cheeria Abdulla Co. - 1965 (16) S.T.C. 875. In that case the Apex Court was examining the scope of powers under Section 12(2) of the Madras General Sales Tax Act. Sub-section (2) of Section 12 of the said Act is reproduced below to appreciate .the similarity between the said provision which was before the Supreme Court in that case and the provision of Section 129D(2):- (2) The Deputy Commissioner may- (i) suomotu (ii) in respect of any order passed or proceeding recorded by the Commercial Tax Officer under sub-section (1) or any other provision of this Act and against which no appeal has been preferred to the Appellate Tribunal under Section 12A, on application, call for and examine the record of any order passed or proceeding recorded under the provisions of this Act by any officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such order, or as to the regularity of such proceeding, and may pass such .order with respect thereto as the thinks fit", (page 882) [Emphasis supplied] The Hon ble Supreme Court has held as follows with reference to Section 12(2) of the Madras General Sales Tax Act :- Tu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to pass an order for initiating the proceedings for filing of an appeal before the Collector of Customs (Appeals) in terms of Section 129D(2) but the Collector cannot travel beyond the record before the lower authority. He has submitted that it is admitted to the department that the-ir sole ground for re-opening of the adjudication order already passed by the Deputy Collector of Customs is on the basis of a quotation received subsequently from the same supplier from whom die appellants have obtained the goods. An information received subsequently, which was not before the adjudicating authority whose order is sought to be re-opened under Section 129D(2) cannot be taken into account for the purpose of finding of any illegality or impropriety of the said order. Illegality or impropriety of the said order passed by a lower authority has to be strictly judged on the basis of the material on record. It is a different matter that the Collector of Customs (Appeals) may, once the lower authority s order is tentatively held to be illegal or improper, take fresh material into consideration while passing an order confirming, annulling or modifying the said order of the lower authority. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without jurisdiction. The impugned order, therefore, is not correct in law. I, therefore, set aside it and allow the appeal with consequential relief. 11. This order is, however, passed without prejudice to any other remedy that may be available to the department under the Act for re-opening the assessment made by the Deputy Collector of Customs or Lower Authority. Dated: 16-9-1991 (P.C. JAIN) TECHNICAL MEMBER Difference of Opinion In view of the aforesaid orders, the following difference of opinion has arisen :- "Whether in the facts and circumstances of this case the appeal is to be allowed or to be dismissed." DATED: 16-9-1991 (P.C. JAIN) TECHNICAL MEMBER (G.A. BRAHMA DEVA) JUDICIAL MEMBER The following difference of opinion has arisen in view of the orders passed by two of us (placed below):- Whether in the facts and circumstances of this case the appeal is to be allowed or to be dismissed. The point of difference of opinion is referred to the President in terms of Section 129C of the Customs Act for further necessary action DATED: 16-9-1991 (P.C. JAIN) TECHNICAL MEMBER (G.A. BRAHMA DEVA) JUDICIAL MEMBER Hon ble Vice-President. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ombay - 1985 (22) E.L.T. 950 (Tribunal) wherein the Tribunal held that only material on record can be looked into for ascertaining legality of the order to be reviewed, though, subsequently while passing the order on review other material can also be relied upon. The learned Counsel urged that review cannot be initiated solely on the basis of additional material which was not before the adjudicating authority since the initiation of the review proceedings is in itself bad in law in this case. The impugned order of the Collector (Appeals) is vitiated. Shri Prabhat Kumar, the learned Departmental Representative appearing for the Department contended that a perusal of the adjudication order of the Deputy Collector would show that the value of the imported goods as declared by the appellants had been accepted which would show that in passing the order, valuation of the goods was also a question determined by the Deputy Collector. In this context, therefore, the order of the Collector of Customs under Section 129D(2) is valid as it arises out of one of the issues decided by the Deputy Collector and to determine the legality and propriety of that decision. The learned Departmental Repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted according to the Department. In reply, the learned Counsel pointed out that in the Tara Devi Agarwal case the question of calling for records did not arise for determination. Where a dutyis cast on the I.T.O. to make an enquiry and he failed to do so, it was held that itself will be a error. There was also the Delhi High Court decision in the case of Gunvant and Others v. Collector of Central Excise and Others, reported in 1987 (32) E.L.T. 53 (Del.) to say that no review can take place on materials obtained subsequent to adjudication order and therelias tote finality to investigation and adjudication. It was also urged that the order of the Deputy Collector would show that no question of valuation was raised. Only the question of import without a licence was adjudicated. 12. The submissions made have been carefully considered. The Supreme Court in its decision in the case of Collector of Central Excise v. M.M. Rubber Co., reported in 1991 (55) E.L.T. 289 (S.C.) had observed, with reference to a parallel provisions for review under Section 35E (1) (2) of the Central Excises and Salt Act, 1944, that the direction to file an appeal under these two sub-sections by the Board and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irection under Section 129D(2) by the Collector on the basis of the quotation which came to the notice of the Department subsequent to the adjudication order and which admittedly was not before the Deputy Collector at the time of adjudication who had decided the case only on the basis that the import was unauthorised because there was no Import Licence to cover the goods. On this aspect the Tribunal in the case of Reckitt Colman of India Ltd. cited supra had considered the K.M. Cheria Abdulla Co. case as well as Swastik Oil Mils cited supra of the Supreme Court as well as the Bell Punch (India) Pvt. Ltd., Calcutta decision of the Tribunal also cited supra and had found that in both the decisions of the Supreme Court the principle laid down was that in initiating the proceedings, the officer concerned may look into the matter available in the record only for ascertaining the correctness legality or propriety of the order sought to be reviewed though in subsequently passing the order on review he can rely upon other material also. The Tribunal observed in the circumstances the contention of Shri Ragavan Iyer based on the observation of the decision of this Tribunal cited supra ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 was sought to be reviewed by the Central Government under Section 82(2) of the Gold (Control) Act, 1968, based on certain materials obtained in March, 1980. The Hon ble High Court s observations in paras 6 and 8 of the decision are very relevant which are re-produced below :- Para 6. It is apparent that Central Government proposed to exercise revisional jurisdiction under Section 82(2) of the Act on the basis of fresh material which was not on record before the Administrator and which was obtained much later, namely, Mint Master s Report dated 10th March, 1980 and inspection, of the goods on 10th June, 80. The short question is whether they have the jurisdiction to do so. Para 8. It is well settled that additional evidence could not be permitted even in an appeal to enable one of the parties to remove lacunae in presenting its case at the proper stage and to fill in gaps. (See: State of UPJ v. Manbodhan Lal - AJ.R. 1957 S.C.912 at page 915). In exercise of jurisdiction under Section 82 of the Act, the Central Government can call for, and examine the record of any proceeding in which an adjudicating authority subordinate to it has passed any order or decision under the Act fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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