ORDER
J.N. Srinivasa Murthy, Member (J)
1. This is the department’s appeal against the above captioned Impugned order dated 8.11.99 praying for setting aside the same.
The brief facts of the case are that on 3.2.1965 the Respondent was intercepted at Bombay Central Railway Station by police constable Badge No. 1304 while carrying 800 tolas of gold in his suitcase. He and his companion Ram Swaroop Motilal Agarwal tried to run away with the suitcase but were apprehended by the above constable with the timely help of two other constables and taken to police station. On opening the suitcase 80 gold bars totally weighing 800 Tolas were recovered from the said suitcase, Rs. 8050 Indian Currency and a cheque of Rs. 200 from the person of Ram Swaroop M. Agarwal. Gold and Indian currency were handed over to the custom Authorities of Mumbai, who seized them on same day. Additional Collector of Customs confiscated absolutely the 800 tolas of gold and imposed personal penalty of Rs. 50,000 on the Respondent under Order No. S/14-5-5/65P INT dated 11.4.67. It was set aside by the Central Board of Excise and Customs under Order No. 130 dated 12.6.68, after granting of waiver of predeposit of penalty on 1.2.68 under letter E No. 1/66/67-Cus-II dated as above, on request of respondent. In view of the above order, customs department under Letter No. S/14-5-5/65 dated 21.8.68 intimated the Respondent that he had not taken Dack the gold, and warehouse charges for retention was also intimated, He did not choose to talk (take) delivery of the gold. He slept over it for 29V2 yrs. Gold was deposited in the mint on 14.12.74.
2. On 15.12.97, Department received a letter addressed to Commissioner of Customs preventive by respondent seeking delivery of the above gold as per the board’s letter’ referred above, without any plausible reasons for his abnormally belated request. Matter was referred to Finance Ministry, for legal opinion, from Ministry of Law and Justice, which was informed under Letter No. E No. 711/23/99-Cus (AS) along with copy of legal advice that the claim was barred by limitation and the department was not obliged to entertain the claim at this stage. This was informed by Assistant Commissioner of Customs (Preventive) disposal (R&I) under his letter F No. R & I/Disp/3/97 dated 10.6.99 to the respondent. On appeal by Respondent, Commissioner of Customs (Appeals) after hearing, remanded the matter to Assistant Commissioner preventive disposal R & I to hear the Respondent and pass a speaking order in detail. Hence this appeal.
3. In support of the appeal, Sri B.B. Sarcar, learned SDR has submitted arguments that impugned order is not legal and proper, as Assistant Commissioner has only informed the stand of the department based on the opinion of ministry of law conveyed, and the question of deciding afresh and giving a speaking order does not arise, as it is an administrative order, and not a Quasi-Judicial order under Customs Act. The matter involved is the implementation of the order passed by the Central Excise and Custom board over 29 yrs. ago. Appeal should have been dismissed by Commissioner of Customs (Appeals). Respondent has appeared in person and submitted the paper book, and has sought for direction to the mint to deliver the gold to him, whose ownership is not disputed, and he had paid warehousing charges as intimated by the department, which was not accepted as belated claim, and he had valid reasons for this delay, and produced, the Income Tax records, correspondence with the Department, and Extracts High Court order, board’s order, and written submissions before Commissioner (Appeals) and written submissions in this appeal. Learned SDR was also supplied and apprised of the above material. Respondent has also filed cross-objection to the appeal, copy of which was also supplied.
4. Perused the letter dated 10.6.99 from the office of Commissioner Customs (Preventive) New Custom House, Ballard Estate, Mumbai, signed by the Assistant Commissioner of Customs (Preventive) Disposal (R&I) Mumbai to the Respondent regarding delivery of 800 Tolas of gold, with reference to his letter dated 10.12.97 that, “The matter has been examined. Your claim for 800 tolas of gold is barred by limitation and the department is not obliged to entertain the claim at this stage. In view of the above, your claim for 800 tolas of gold can not be entertained at this stage” — Respondent’s letter dated 10.12.97 is addressed to Commissioner of Customs, Preventive Department, Mumbai with subject to delivery of 800 tolas of gold, Register No. 21, No. 207 date not clear states that — “Please find enclosed a copy of your letter No. S/14-5-5/65 PINT dated 21st August 1968. It is clear that 800 tolas of gold belonging to me is lying in your custody on trust. Due to certain reasons the delivery could not be taken till now. However, I would like to take delivery of this gold and request you to do the same at the earliest possible. The aforesaid gold has been sent to mint as on 14.12.74 for safe custody. An immediate response from your side is requested with an intimation to me as early as possible” — Letter copy, as above, along with Judgment copy of Board Order No. 130 of 12.6.1968 is enclosed. In response to it, on 17.12.97 Additional Commissioner of Customs (P) from the office of Commissioner of Customs (Preventive) has replied that, “since you have failed to take delivery of the same from this customs house within stipulated period (5 days), 800 tolas of gold ordered to be released to you has beer deposited with the Govt. of India mint on 14.12.74. Further action for delivery of the said gold is under progress” — By 2.8.68 letter, Assistant Collector of Custom preventive department has informed the Respondent regarding seizure of gold, weighing 800 tolas and Indian currency on 3.2.65 — Confiscation of — appeal against orders in appeal that “Please refer to the board’s Order No. 130/1968 of the Central Board of Excise & Customs intimated to you under Board’s Endorsement No. F No. 1/66/67 Cus-II dated 15.6.68 under the orders confiscated gold is allowed to be released. However the gold has not been taken delivery of so far. You are informed that if the go6ds are not taken delivery of within five days of the date on intimation of their release under the orders warehouse charges are recoverable thereon. These charges will be calculated at Rs. 2 per day per package”
5. From the above material, it is clear that Respondent wanted the implementation of board’s order by the Commissioner of Customs (Preventive). The correspondence in that regard, though emanated from the Commissioner’s office, it was signed by Additional Commissioner and Assistant Commissioner of Customs, as evident from the above letters, whatever the contents written therein was the decision of Commissioner, but communicated by his subordinate Authorities. The contention of the learned SDR in that regard is correct. Communication dated 10.6.99 signed by Assistant Commissioner, challenged in the appeal by the present Respondent in the appeal before Commissioner of (Appeals) is not that of his own, but of Commissioner of Customs (Preventive) in response to the letter of Respondent dated 10.12.97, who has taken his decision in the light of Law Ministry advise forwarded along with the letter of finance ministry to the Commissioner of Customs (Preventive) 10.6.99 letter, says it was the stand of the Department. So in such a situation Section 128 of Customs Act is not applicable as contended by Respondent. Section 129A(I)(a) of Customs Act applies of such a case, under Section 129(B)(I) of Customs Act, the appellate tribunal may after giving opportunity of being heard, pass such orders there on, as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such direction as appellate tribunal thinks fit for afresh adjudication or decision, as the case may be, after taking additional evidence, if necessary — “In this case such an occasion does no arise. The appeal filed before the Commissioner of Customs (Appeals) itself was not maintainable as urged by appellant, and as discussed in the above paras. No orders as to limitation period or time bar issue raised in the case can be considered and passed, as contended by the respondent in the absence of an appeal by him under Section 129A(I) of Customs Act. The Assistant Commissioner of Customs (Preventive) can not take cognizance of the case and hear the Respondent and pass a speaking order as he was not the authority, who took the decision communicated in the letter dated 10.6.99. The direction issued in the impugned order by Commissioner of Customs (Appeals) is without any Jurisdiction, against the decision taken by Commissioner of Customs (preventive) in response to the request of Respondent dated 10.12.97, so the Remand order is in executable. The contention of learned SDR is upheld. The cross-objection of Respondent with written submissions can not be accepted, in the absence of copy of Law Ministry’s advise, and arguments thereon, and its reply contentions by Respondent. The written submissions of Respondent and Grounds in cross-objection are considered. But no direction, an (as) sought for, can be given, for the reasons discussed above. The appeal is entitled to succeed. Hence I pass the following order.
ORDER
1. For the reasons discussed above, the appeal is allowed and impugned order is set aside. Cross-objection is dismissed.