TMI Blog1996 (6) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 to M/s. ORG Systems and to C.R. Salian above named appellants and it appear no show cause notice was issued to Shri H.C. Choksi, the other appellant in this case under Sections 111(m), 112(a) for violation of Section 11 of Customs Act, 1962. The company filed a detailed reply and so also Salian but no reply was filed by Shri Choksi. The Learned Deputy Collector passed the order-in-original against the appellants and the company, by which he ordered for confiscation of 45 nos. of wine Chester Disc Drives under Section 111(m) of the Customs Act but at the same time granted redemption to the company on payment of fine of Rs. 3 lakhs and also imposed penalty under Section 112(a) on both the appellants of Rs. 1.5 lakh each. Both the appellants did not file appeal before the Collector (Appeals) as provided under the law, although the order-in-original was served upon them. The covering letter to the order-in-original clearly disclosed that if they were aggrieved with the said order, they could file appeal before the Collector (Appeals). The company filed the appeal on its behalf only, without the appellants being the parties or the appellants signing the appeal of the company. The co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be prescribed within a further period of three months. (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf." The proceedings under the Section 111 and Section 112(a) of the Act before the adjudication authority are quasi-criminal in nature and the levy of penalty is penal in character. The appellants Shri C.R. Salian had been issued with show cause notice. Although Choksi had not been issued with show cause notice but he is aware of the proceedings. The company had filed their appeal against the confiscation of the goods and against the imposition of fine. In their prayer column, they had sought for setting aside the penalty against their officers. But this appeal is not a joint appeal and the appellants had neither signed the appeal of the company nor authorised the company to file an appeal on their behalf. The copy of the order-in-original had been served on Shri C.R. Salian, and it had been noted in the covering le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that an appeal lies to the Collector (Appeals) by any person aggrieved by any decision or order passed by an officer of Customs lower in rank than the Collector of Customs. Therefore, the Company M/s. SEL being an aggrieved party had filed the appeal and the appellants had not been done so. However, it is their contention that SEL could not submit arguments in respect of penalty imposed on the appellants and therefore, the Collector (Appeals) had not passed any order regarding the imposition of penalty against the appellants in the absence of any appeal from them. It is stated by them that although they had not filed any appeal before the Collector (Appeals) as per law yet they are aggrieved persons and hence, a question arises for reference to the High Court. They also stated that although the appeal lies under Section 130E of the Customs Act to the Hon ble Supreme Court from any order passed by the Appellate Tribunal relating among other things to the determination of any question having relation to the rate of duty or Customs or to the value of goods for the purpose of assessment. However, in this case as only penalty has been challenged by the appellants, they have no right of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not exercised the right of appeal by filing an appeal before the first appellate forum and it is only the company M/s. SEL, who had agitated against the order passed by the Assistant Collector before the Collector (Appeals). The Collector (Appeals) had merely noted the fact that the appellants not having filed the appeal before him. Therefore, the order of the Collector gets confirmed to that extent. It follows, therefore, that the appellants have not exercised their right of appeal and by their action, whether deliberate or conscious have given up their right of appeal, which was available to them to file appeal before the first appellate forum. They realised only after the Collector (Appeals) had passed an order about their having waived their right of filing the appeal. Therefore, they approached the Tribunal and the Tribunal held that they have not exercised their right of filing the appeal and that they cannot come to the second appellate forum, as the Tribunal takes up the appeals only against the order passed by the first appellate forum. As can be seen from the provisions of law, that an appeal before the Collector has to be filed within 3 months and the Collector has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it is itself an inference from other basic facts will not alter its character as one of fact. 13. As can be seen, the present case does not fall within any of ambits laid down by the Hon ble Supreme Court. There is no point for determination arising from a construction of a statute or legal provision requiring interpretation. Hence, the above ratio will not help the appellants, while in fact, it helps the Revenue. 14. In the case of Scindia Steam Navigation Co. Ltd. (supra), the Hon ble Supreme Court has held that where a question of law is raised before the Tribunal and the same was not dealt with, then it becomes a question arising out of its order requiring reference. It also held that when a question was not raised before the Tribunal but the Tribunal deals with it, that it will also be a question arising out of its order. It also held that where a question of law is neither raised before the Tribunal nor considered by it, then it will not be a question arising out of its order; notwithstanding that it may arise on the finding given by it. On an examination of this ruling, it is very clear that the same is more helpful to the Revenue, then to the appellants. 15. The mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is sometimes denied that right because he is estopped to do so. The factor usually present in these cases is conduct inconsistent with the present assertion of that right, or conduct of such character that it would be unjust to others to permit him to avoid liability on constitutional grounds. A person may not question the constitutionality of the very provision on which he bases the right claimed to be infringed ... and a person who has received the benefits of a statute may not thereafter assert its invalidity to defeat the claims of those against whom it has been enforced in his own favour. A passage from Halsbury s Laws of England (3rd Ed.), Vol. II, P.150 (Simonds edition) is also of some assistance : The qualification of a present to act as a relator could be successfully impeached if it could be shown that, at the time, he acquiesced in the election to which he objected; or that he had concurred in other election of like kind with that to which he objected, and which was subject to the same objection or that he stood in the same situation as the defendant, so that he would have no title to his own office, if his objection to the defendants election were successful; or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bench in A.R.V. Achar v. Madras State. [A.I.R. 1954 Mad. 563]. In Madhao Gopal v. Secretary of State, [A.I.R. 1939 Nag. 44] Justice Niyogi and Justice Gruer stated the rule thus : It is true that an ultra vires statute cannot be validated by acquiescence but it is equally true an acquiescing party may be estopped from questioning it. [See Street on the Doctrine of Ultra Vires, 1930 Ed., p. 436] In W.P.No. 375 of 1954 (Andhra) (i), Satyanarayana Raju, J., held that a person who was himself appointed under the Madras Hereditary Village Offices Act could not question the validity of the Act." 19. In that view of the matter, for reasons stated above no reference of law arises for High Court. Hence, the reference applications are rejected. [Assent per : S.K. Bhatnagar, Vice President]. With due respect to my learned Judicial Member, my views and orders are as follows : 2. In my opinion, the question of maintainability of an appeal or otherwise is a question of law. However, it is not that every question of law is referable to the High Court. 3. In the present case, an explicit provision of law exists to the effect that an appeal against a decision or order of an off ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
