JINDAL STRIPS LTD Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THIS appeal is against Order -in -Original Assessment Order No. NG/ICD/TKD/3/99, dated 27 -11 -1999. This order is one passed by the Deputy Commissioner of Customs -ICD/TKD, New Delhi. Preamble to that order clearly stated that appeal against it lies to the Commissioner of Customs (Appeal) New Customs House, New Delhi as provided under Section 128(1) of the Customs Act, 1962 (as amended). Instead of going in appeal before the appellate authority, namely, the Commissioner of Customs (Appeals), appellant has approached this Tribunal and reason for such an approach to this Tribunal is to be found in some of the notings made by the Commissioner in the file relating to the import dealt with by the impugned order. Those notings made by the Commissioner in the file according to the appellant makes the impugned order as one passed by the Commissioner and issued by the Deputy Commissioner.

(2.) NOTINGS made by the Commissioner in the file are made available to us along with the Memo of Appeal. They are at pages 13 to 16. According to the learned Counsel the file relating to the import concerned in the impugned order was dealt with by the Commissioner. When the file moved from the office of the Commissioner to the Deputy Commissioner, it was through the appellants representative, namely, clearing agent, who was entrusted with the file by the Commissioner's office to be handed over to the office of the Deputy Commissioner. He got photocopy of the file. Such photocopies are those seen at pages 13 to 16 of this appeal. We are at a loss to understand as to how the internal communication between the office of the Commissioner and that of the Deputy Commissioner happened to leak out through this method. The clearing agent who was the representative of the appellant was taking official record from one office to the other. In that course he was taking it to a photocopier to get the file copied. This is not what is expected of a messenger who is to take a file from one office to the other. The clandestine activity resorted to by an agent of the appellant has given rise to this argument of the learned Counsel representing the appellant that the order though captioned as that of the Deputy Commissioner of Customs ICD/TKD, New Delhi was, in fact, giving effect to the notings made by the Commissioner. On this basis the learned Counsel argued that the impugned order must be taken to be an order passed by the Commissioner and appeal entertained. We find it difficult to accept this argument. The order in this case is one passed by the Deputy Commissioner. That order is appealable to the Commissioner as per Section 128(1) of the Customs Act. Reference was made to the decision in M.P. Steel Corporation v. Commissioner of Customs - 1999 (112) E.L.T. 331 to support the argument that the order impugned before us is one passed by the Commissioner and communicated to the party by the Deputy Commissioner. We are afraid that the said decision is not of any assistance to the appellant. In the decided case, the order was passed by the Commissioner and that order was communicated by the subordinate official. That is not the position here. Here the order was passed by Deputy Commissioner. May be in the course of decision making process some movement of file took place between the Commissioner and the Deputy Commissioner. In that process Commissioner might have given his views in the file. Those notings of the Commissioner on the file can, by no stretch of imagination, be said to be a decision taken by the Commissioner on the issue raised in these proceedings. So we are clear in our mind that the order impugned before us in this appeal is one passed by the Deputy Commissioner. Against that order no appeal lies to Tribunal. So on that ground we dismiss the appeal. We make it clear that this dismissal may not prejudice the right of the appellant to prefer an appeal to the appellate authority in accordance with law.