ORDER
Smt. Archana Wadhwa
1. All the three appeals are being disposed of by a common order as they all arise out of the same impugned order of the Commissioner(Appeals).
2. After hearing the ld.consultant representing the appellants it is seen that vide order-in-original dt.15.6.99 the joint Commissioner of Customs (Prev.), West Bengal, Calcutta vacated the show cause notice issued to the appellants proposing confiscation of Bangladeshi currency and imposition of penalties upon them. while dropping the demand the adjudicating authority observed as under:-
“Having regard to the facts and circumstances of the case as available on the case records and as briefly discussed above and in view of the clear legal position laid down by various higher judicial authorities including Hon’ble Supreme Court and CEGAT as discussed above, and keeping in view the factual evidence produced by the noticee regarding the licit acquisition of the impugned Bangladeshi currency buy her in accordance with the licenced permission granted by RSI, Calcutta, I am compelled to come to a conclusion that the seizure of Bangladeshi Taka in the present case is not a tall justifiable in law. As the investigation, officers have not been able to bring on record any evidence justifying the invoking of section 111(b), 111(p) of the Customs Act, 1962 in any manner whatsoever, I am left with no option but to order unconditional release of he seized Bangladeshi Taka and the other seized goods to smt.Anika Sarkar forthwith.
No cause is mae out for imposition of penalty under section 112 of the Custom Act, 1962 against any of the three noticees in the present case.
3. The said order was reviewed by the Commissioner and it is seen that an appeal was appealed by the Asstt.Commissioner of Customs(Tribunal & Review) West Bengal, Calcutta before the Commissioner(Appeals). The Commissioner(Appeals) vide his impugned order observed that there was no merits in the points raised by the Revenue in their appeal petition. Accordingly he set aside the order of the Joint Commissioner and directed re-determination of the issues as indicated in the appeal petition. The appellants are aggrieved with the said order of Commissioner(Appeals). Hence the present appeal.
4. Though, number of pleas and contentions have been placed before me, but I find that the appeals can be disposed on the legal issue of the authorisation given by the commissioner not being proper and valid. It is seen that the order-in-original was passed by Joint Commissioner, whereas the appeal before Commissioner(Appeals) was filed by the Asstt.Commissioner, authorised by the commissioner to do so. The appellants have challenged the said authorisation on the ground t hat it has to be given to the same authority who adjudicated the case and not to any other authority. Inasmuch as in the present case the adjudication was by the Joint commissioner, authorisation given to the Asstt.Commissioner was not valid, on the face of it. For the above proposition reference has been made to the Tribunal’s decision in the case of Supreme Indus.Ltd.v.CCE, Indore -1999(114)ELT 1003(T).
5. The Tribunal in the above referred case of Supreme Indus.Ltd. has held that he authorisation given to the Deputy Commissioner to file an appeal against the adjudication order of additional Commissioner was not proper. By observing so the orders passed by the Commissioner(Appeals) was set aside and the appeals were allowed. Reference in the said case was made to the earlier decision of the Tribunal in the case of Dhanpur Sugar Mills Co.Ltd. -199(108)ELT 498 wherein it was observed that “Section 35F(2) contemplates only one authority whose orders or decisions can be called for and examined by the Collector and that authority can be only an adjudicating authority subordinate to him. After examination of the records, the Collector has to satisfy himself as to legality or propriety of any such decision or order. Thereafter he has to direct ‘such authority’ to apply to the Collector for determination of such points arising out of the decision or the order as may be satisfied. There is no provision under that sub-section for giving the direction to any other authority to make an application to the Collector(Appeals). Though the order was passed by the Superintendent, the direction was given by the Collector to file an application against their order was given to the Asstt.Collector and not to the Superintendent. On a plain reading of the provisions of section 35F(2), therefore, the direction given to the Asstt.Collector is clearly not permissible under section 35E(2)”. For arriving at the above conclusion the Tribunal relied upon the Apex Court decision in the case of M.M.Rubber Co. -1991(55)ELT 289.
6. In the present case also I find that he authorisation given by the Commissioner is not correct inasmuch as the order was passed by the Joint Commissioner, whereas the authorisation has been given to the Asstt.Commissioner, who has filed the appeal before Commissioner(Appeals). Accordingly following the ratio of the decisions, I set aside the impugned order of the Commissioner(Appeals) and allow the appeal of the appellants with consequential relief, if any.