TMI Blog1997 (2) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... ding since long before the High Court so far as the aforesaid challenge is concerned it would be in the interest of justice to request the High Court to decide the said writ petition on the merits of the question regarding the legality and property of the order of Collector/Assistant Collector of Customs dated 5th June, 1989 as expeditiously as possible preferably within a period of four months from the date of receipt of a copy of this order at its end.The appeals are accordingly allowed. The common judgment under appeal as rendered by the High Court is quashed and set aside with a direction to the High Court to decide on merits. - 2035-36 of 1990 - - - Dated:- 20-2-1997 - S.P. Bharucha and S.B. Majmudar, JJ. [Judgment per : S.B. Majmudar, J.]. - M/s. Northern Plastics Ltd. is the common appellant in these two appeals moved by it after obtaining special leave to appeal from this Court against a common judgment dated 9th March, 1990 passed by the High Court of Delhi in two Civil Writ Petitions, one moved by M/s. Hindustan Photo Films Mfg. Co. Ltd. (`HPF' for short), Respondent No. 1 in C.A. No. 2035 of 1990, and the other the Union of India, Respondent No. l in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r more, falling within Chapter 37 of the First Schedule to the Customs Tarif Act, 1975 (51 of 1975), when imported into India, from so much of that portion of the duty of customs leviable thereon under the said First Schedule as was in excess of the amount calculated at the rate of 60 per cent ad valorem, subject to the following conditions : (i) the importer undertakes conversion of the said jumbo rolls by slitting or confectioning into finished products; (ii) the importer holds an industrial licence under the Industries (Development and Regulation) Act, 1951 (65 of 1951), for slitting and confectioning of photosensitised materials from jumbo rolls. According to the appellant the benefit of this concession in import duty on the jumbo rolls of various types of films which were being imported by the appellant was available to it. The appellant had imported various consignments of articles of X-Ray films and graphic art films through the port at Bombay between January 1989 and May 1989. The shipments concerned for the same consignments were made in favour of the appellant by the foreign exporters between 15th December, 1988 and 20th April, 1989. According to the appellant th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout availing of the benefit of the concessional rate of import duty pursuant to the earlier referred notification dated 7th July, 1988. 3.Having come to know about this order of the Additional Collector of Customs, HPF which is a public sector undertaking wholly owned by Government of India, which was already joined as a party, at its own request, to the appellant's pending petition, moved an interim relief application in that petition, for staying the clearance and removal of the goods imported by the appellant. The High Court by its order dated 9th June, 1989 in vacation granted ex parte stay of the Collector's order. The interim relief application of HPF was subsequently heard by another Vacation Judge in the High Court on 21st June, 1989 and after completion of the arguments on behalf of the HPF on 26th June, 1989 a request was made for not pronouncing the judgment in the said interim relief application. However the said request was not granted and the interim relief application of HPF was dismissed on 26th June, 1989 by the High Court. That thereafter HPF filed a writ petition in the High Court of Bombay on that very day, that is, 26th June, 1989 praying for simi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal was not maintainable. Thereafter on 8th August, 1989 the other appeal filed by Ministry of Industries against the very same order of Additional Collector of Customs was also dismissed as not maintainable, the Ministry of Industries being held not an `aggrieved person' within the meaning of Section 129A of the Act. Under these circumstances HPF filed another Writ Petition No. 2286 of 1989 in the Delhi High Court on 9th August, 1989 challenging two orders - (i) the order of CEGAT dated 31st July, 1989 holding its appeal as not maintainable; and (ii) the order of Additional Collector of Customs (Bombay) ordering release of the imported goods to the appellant. A Division Bench of the High Court while admitting the writ petition restrained clearance of the goods in favour of the appellant pending the writ petition. In the said writ petition Ministry of Industries was also permitted on its application to be impleaded as party-respondent. The Union of India representing Ministry of Industries in its turn filed another writ petition being Civil Writ Petition No. 3023 of 1989 on 24th October, 1989 before the High Court of Delhi against the order dated 8th August, 1989 passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 25th April, 1990 a Bench of two learned Judges of this Court was pleased to direct that Chief Controller of Imports and Exports may be appointed as Court Receiver for disposing of the goods in question by sale in auction as expeditiously as possible and at the maximum price they will fetch in the market. It was further directed that the amount of the sale proceeds of the auction shall forthwith be deposited by the receiver in this Court to the credit of these appeals. Accordingly the goods were auctioned. By a further order dated 21st September, 1990 another Bench of two learned Judges of this Court accepted the offer of four purchasers who had offered to purchase all the disputed goods for a total sum of ₹ 1,40,00,000/-. Further auction sales were confirmed in favour of the concerned auction purchasers. By the same order it was directed that the auction amount shall be deposited by this Court in a Fixed Deposit Account and the amount so deposited shall remain in the custody of the Court and shall be disposed of in accordance with the final judgment in the appeals pending before the Customs, Excise and Gold (Control) Appellate Tribunal. The aforesaid order was passed for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliance on judgments of this Court to which we will make a reference at an appropriate stage. Shri Dave submitted that the concept of locus standi as expanded by decisions of this Court in connection with public interest litigations moved before this Court under Article 32 or before the High Courts under Article 226 of the Constitution of India had no application to the statutory right of appeal to be culled out from the express language of the statute creating the appellate forum and also confirming the right of appeal to the parties mentioned therein. In the alternative, submitted Shri Dave, neither the Industries Ministry nor the HPF, which is a rival commercial concern, can be said to be aggrieved by the order of the Assistant Collector of Customs (Bombay) directing release of the imported goods in favour of the appellant on payment of full customs duty. Shri Dave also tried to submit that it could not be urged by the contesting respondents that the import of the goods in question was unauthorised as for additional import licence purchased by the appellant actual user test was not applicable. For resolving the present controversy it is not necessary to consider this alternati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Co. Ltd. etc. etc. v. State of Gujarat others etc. etc. [AIR 1975 S.C. 1234 = (1975) 2 SCC 175]. In that case Khanna, J., speaking for the Court had to consider the question whether the provision of statutory appeal as per Section 406(2)(e) of the Bombay Provincial Municipal Corporation Act, 1949 which required the appellant to deposit the disputed amount of tax before appeal could be entertained could be said to be in any way violative of Article 14 of the Constitution of India. Repelling the aforesaid challenge to the vires of the said provision the following pertinent observations were made in Para 40 of the Report: ....The right of appeal is the creature of a statute. Without a statutory provision creating such a right the person aggrieved is not entitled to file an appeal. We fail to understand as to why the Legislature while granting the right of appeal cannot impose conditions for the exercise of such right. In the absence of any special reasons there appears to be no legal or constitutional impediment to the imposition of such conditions. It is permissible, for example, to prescribe a condition in criminal cases that unless a convicted person is released on bail, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e answer must be found from within the four corners of the Act itself. 10.We have, therefore, to turn to the scheme of the Act providing for appeals. Provision of appeals is found in Chapter XV of the Act. Section 128 deals with `Appeals to Collector (Appeals)' and Section 128A deals with `Procedure in appeal'. The Appellate Tribunal is constituted as per Section 129 of the Act. Sub-section (1) thereof lays down that, `the Central Government shall constitute an Appellate Tribunal to be called the Customs, Excise and Gold (Control) Appellate Tribunal consisting of as many judicial and technical members as it thinks fit to exercise the powers and discharge the functions conferred on the Appellate Tribunal by this Act'. It is, therefore, obvious that the Appellate Tribunal CEGAT is a creature of statute and derives its jurisdiction and powers only from the statute creating it and not outside the same. Then follows Section 129A dealing with `Appeals to the Appellate Tribunal'. The relevant provisions thereof read as under : 129A. Appeals to the Appellate Tribunal. - (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Customs has passed any decision or order not being a decision or order passed under sub-section (2) of this section of the nature referred to in sub-section (5) of Section 129D for the purpose of satisfying itself as to the correctness, legality or propriety or such decision or order and may pass such order thereon as it thinks fit. Similarly Section 129DD gives powers of revision to Central Government to entertain revision petitions against certain orders of the Collector (Appeals). It provides as under : 129DD. Revision by Central Government. - (1) The Central Government may, on the application of a person aggrieved by any order passed under Section 128A, where the order is of the nature referred to in the first proviso to sub-section (1) of Section 129A, annul or modify such order. Explanation. - For the purposes of this sub-section, `order passed under Section 128A' includes an order passed under that section before the commencement of Section 40 of the Finance Act,1984, against which an appeal has not been preferred before such commencement and could have been, if the said section had not come into force, preferred after such commencement to the Appellate Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... industry operating in the same field as the importer can as a matter of right prefer an appeal as `person aggrieved'. It is true that the phrase `person aggrieved' is wider than the phrase `party aggrieved'. But in the entire context of the statutory scheme especially sub-section (3) of Section 129A it has to be held that only the parties to the proceedings before the adjudicating authority Collector of Customs could prefer such an appeal to the CEGAT and the adjudicating authority under Section 122 can prefer such an appeal only when directed by the Board under Section 129D(1) and not otherwise. It is easy to visualise that even a third party may get legiti- mately aggrieved by the order of the Collector of Customs being the adjudicating authority if it is contended by such a third party that the goods imported really belonged to it and not to the purported importer or that he had financed the same and, therefore, in substance he was interested in the goods and consequently the release order in favour of the purported importer was prone to create a legal injury to such a third party which is not actually arraigned as a party before the adjudicating authority and was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umber of cases that a person who is not a party to a suit may prefer an appeal with the leave of the appellate court and such leave would not be refused where the judgment would be binding on him under Explanation 6 to Section 11 of the Code of civil procedure. We find ourselves unable to take the view that because a person has been given notice of some proceedings wherein he is given a right to appear and make his submissions, he should without more have a right of appeal from an order rejecting his contentions or submissions. An appeal is a creature of statute and if a statute expressly gives a person a right to appeal, the matter rests there. Innumerable statutes both in England and in India give the right of appeal to `a person aggrieved' by an order made and the provisions of such statutes have to be construed in each case to find out whether the person preferring an appeal falls within that expression. As was observed in Robinson v. Currey [7 QBD 465] the words `person aggrieved' are `ordinary English words which are to have the ordinary meaning put upon them'. According to Hanslbury's Laws of England (Third Edition, Vol. 25), page 293, footnote `h' : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest, the business competition causing it being a lawful activity. Juridically, harm of this description is called damnum sine injuria, the term injuria being here used in its true sense of an act contrary to law [Salmond on Jurisprudence, 12th Edn. by Fitzgerald, p. 357, para 85]. The reason why the law suffers a person knowingly to inflict harm of this description on another, without holding him accountable for it, is that such harm done to an individual is a gain to society at large. In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subject to a legal wrong. He has suffered to legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore he is not a `person aggrieved' and has no locus standi to challenge the grant of the no-objection certificate. 11.Shri Subba Rao, learned counsel for Union of India contended that the Central Government through the Industri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es or statutory provisions under which it may be acting, but that would not clothe it with a legal locus standi to prefer a statutory appeal before CEGAT under Section 129A(1). From the point of view of that provision it is no more than a business rival and cannot be said to be a `person aggrieved' by the adjudicatory order of the Collector of Customs releasing imported goods to the appellant on payment of full customs duty. It has also to be noted that the Customs Act nowhere provides for any special interest of such public concerns which may be operating as rivals in the same commercial field in which the importer may be operating. In the absence of any special statutory provision for protecting the interest of such Government concerns or public sector undertakings no statutory locus standi can be culled out in their favour on the express language of the relevant provisions of the Act noted by us earlier. It must, therefore, be held that HPF was a mere business rival operating in the same commercial field and carrying on the same commercial activities as the appellant. Its locus standi to challenge the order of Additional Collector of Customs in favour of the appellant, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the scheme of the Act and it was wrongly set aside by the High Court. Consequently the appeals will be required to be allowed. 15.However a further question survives for our consideration. As the High Court has noted in the impugned judgment, the other contentions in the writ petitions filed by the contesting respondents were not considered by it in view of its decision on the right of appeal which was made available to the concerned writ petitioners before the CEGAT. We have, however, to observe in this connection that the High Court was not at all justified in presuming what it should do in case the appellant`s appeal succeeded before this Court. Proper direction in that connection should have been left to be given by this Court in such an eventuality. High Court could not have been pre-empted the same by the impugned judgment. However in view of the fact that other contentions in the writ petitions were not examined by the High Court in any case they will now have to be examined by it. As the decision on the right to appeal to CEGAT made available to the contesting respondents by the High Court is being set aside by us, the question remains as to what further appropriate or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... September, 1990. We cannot accede to the request of the learned counsel for the appellant that the said invested amount with accrued interest may be permitted to be withdrawn by the appellant at this stage by furnishing bank guarantee. In our view as the amount is lying deposited and invested by this Court since more than six and half years by now and as we are requesting the High Court to decide the pending writ petition of Union of India on the surviving question as aforesaid within four months from the date of receipt of copy of the present order it would be in the interest of all concerned to continue the investment of the deposited amount of the auction price by this Court and to direct that the withdrawal of that amount shall abide by the final result of the writ petition of the Union of India before the High Court and shall also remain subject to the result of further appeal, if any, against the High Court's judgment in the said writ petition. 16.The appeals are accordingly allowed. The common judgment under appeal as rendered by the High Court is quashed and set aside with a direction to the High Court to decide on merits the Union of India's Writ Petition No. 3 ..... 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