ORDER
P.K. Desai, Member (J)
1. This appeal is directed against a communication F. No. CIU/II-4/91/376 dated 21-2-1992 issued by the Addl. Collector of Customs (P), Bombay, turning down the request of the appellants for issue of detention certificate for the documents released on 20-12-1991, pertaining to 5 bales of Polyester staple fibre.
2. A preliminary objection was raised as to whether this communication could be treated as an order so as to attract the provisions of Section 129A of the Customs Act and as such appealable before the Tribunal.
3. Shri Gomes, the Ld. advocate appearing for the appellants, has submitted that this is an order passed by the Addl. Collector and by virtue of Section 2(1) of the Customs Act, Collector includes Addl. Collector and that the order passed is the one of the nature of adjudication order, which, by virtue of Section 129A(1), would become an order appealable before this Tribunal. When confronted with the query whether the provisions of Section 129A should be read in conjunction with the provisions of Section 122 of the Act, Shri Gomes pleaded that Section 122 would not stand attracted here, but he could not point out the specific section under which this particular communication could be treated as an order, and submitted that the communication being in relation to the inquiry that had been conducted in relation to the illicit import of the items, it could be deemed to be an order appealable under Section 129A(1) of the Act,
4. Shri Singh, the Ld. JDR for the Department, has however, submitted that the definition of the adjudicating authority has been given in Section 2(1) of the Act and that powers to adjudicate have been conferred under Section 122 of the Act. By reading provisions of Section 122, he has pleaded that the order ought to be in relation to the goods and the one relating to the confiscation of the same, as also demanding duty or assessment for the purpose of valuation. In his submission, the present communication being not the one in relation to the provisions of the said section, the same could not be treated as an order passed by the Competent Authority in the process of adjudication of any matter before them. The communication, could at the best, be taken as the one administratively issued denying issuance of the detention certificate.
5. When the issue raised is a preliminary issue in relation to the jurisdiction of this Tribunal to adjudicate upon the points raised, the merits or otherwise of the other points raised is not considered and no opinion is expressed as to the merits thereof.
6. Section 129A(1) empowers the Tribunal to entertain the appeal against a decision or order passed by the Collector as an adjudicating authority. The adjudicating authority has been defined under Section 2(1) of the Act and Section 122 of the Act specifies as to what type of orders various adjudicating authorities can pass. Chapter XV provides for filing of the appeal before the appropriate authority, against the order passed by adjudicating authorities and so far as the Tribunal is concerned, the orders appealable before the Tribunal have been specified in Section 129A of the Act. Going by the communication received, which the appellants wanted to be treated as an order, the same is a denial of issuance of a detention certificate. It cannot be said to be an order passed by a competent authority vide Section 122 of the Customs Act. Even the Id. advocate has conceded that the communication would not fall within the purview of Section 122. He has, however, not been able to point out as to under what provisions of the Act, this type of communication could be passed. The detention certificate is being issued if and when the Department, in adjudication, finds that the goods were unnecessarily detained. Such an order may be a consequence of the adjudication proceedings but could not be said to be the one passed in the adjudication proceedings themselves. The same is to be taken as an administrative action to benefit the person whose goods have been unlawfully detained. The communication therefore cannot fall within Section 122 of the Act and hence cannot be said to be an order passed by the Collector as an adjudicating authority.
7. This being the position, the appeal filed against the said communication is not sustainable before the Tribunal. The Tribunal does not have any jurisdiction to entertain such appeal against such communication. The appeal is therefore, not tenable and is accordingly rejected.