COMMISSIONER OF C. EX. Vs. RAJEEV CHANDRASEKHAR

JUDGEMENT

(1.) HEARD both sides.

(2.) IN this case the Order -in -Original was passed by the Commissioner of Customs (Import) on 2 -7 -05. Being aggrieved by the said order, the Revenue has filed an appeal on 20 -2 -06. The appeal was filed by Shri. S.B. Kamath, Dy. Commissioner of Customs. Subsequent the Revenue has filed another appeal on 21 -2 -06 against the same Order -in -Original. The appeal has now been filed by the Commissioner of Customs (Import). The submission of the ld. DR is that both the appeals contain the same contention. The appeal was initially filed by the Dy. Commissioner which was well in time. Now in view of the provisions of Section 129D of the Customs Act, 1962 the appeal has been filed by the Commissioner. Therefore, the appeal filed by the Commissioner may be treated in time. He drew my attention to Sub -section (4) of Section 129D and submits that the Sub -section (4) clearly authorizes the Commissioner of Customs to file the appeal himself or authorize any other officer of the Customs. Since initially the appeal was filed by the Dy. Commissioner and now by the Commissioner keeping in view the provisions of sub -section, both appeals are in time. He submits that Sub -section (2) of Section 129D clearly provides that the Commissioner of Customs may of his own call for examination of records of the proceedings in which adjudicating authority sub -ordinate to him has passed any order.

(3.) ON bare perusal of the provisions as contained in Sub -section (2) read with Sub -section (4) it becomes clear that the provisions of Sub -section (2) are attracted only when the order has been passed by an officer sub -ordinate to the Commissioner of Customs. In the present case it is an undisputed fact that the order has been passed by the Commissioner of Customs. Therefore, I am not convinced that the provisions of Sub -section (2) read with Sub -section (4) are attracted in this case. The ld. Counsel for the respondents places reliance on the provisions of Section 129D(1) and submits that the said section clearly provides that the Committee of Chief Commissioners of Customs are authorized to call for the record and satisfy themselves with regard to an order passed by the Commissioner of Customs. He draws my attention to the Order of the Committee of Chief Commissioners of Customs dated 6 -1 -2006 and submits that as per the authorization given by the Committee of Chief Commissioners, the Commissioner of Customs (Import) Air Cargo Complex, Mumbai was authorized to file the appeal before the Tribunal. Since the Commissioner has failed to file appeal by the prescribed date i.e. 12 -4 -2006 being the expiry date of limitation for filing the appeal, the present appeal filed by the Commissioner is time barred. He submits that there are no provisions in the Act for condonation of delay by the Tribunal. Since the present appeal has been filed on 21 -4 -06 the appeal is clearly time barred. To support his contention, he relies on the decision of the Larger Bench in the case of Commissioner of Central Excise and Customs v. Pradeep Kumar Shyam Sukha vide Order No. M/298 and 299/WZB/2005/EB/C -I dated 29 -11 -05 2006 (202) E.L.T. 605 (Tribunal) and draws my attention to para 6 thereof which is reproduced as under: In this case, it is not a question of mere presentation of an appeal. The appeals have been filed by a Superintendent (Appeals) and filing of an appeal is certainly cannot be a ministerial function, but a substantive function, which cannot be further delegated to any other officer by the Commissioner who is the officer to whom a direction was given by the Board under Section 35E(1). Similarly he also places reliance on the Larger Bench decision in the case of CCE, Mumbai v. Azo Dye Chem as . Para 6 from this order is reproduced as under: