ORDER
K.S. Dilipsinhji, Member (T)
1. Shri Babulal M.Bohra has filed an application dated 15-1-1982 to the Government of- India against the Board’s Order No. 720-A of 81 dated 22-12-81. The application is purported to have been filed under old Section 131 of the Customs Act. It has accordingly been transferred to this Tribunal under Section 131B of the Customs Act and is to be treated as an appeal to the Tribunal.
2. The appellant Shri Bohra has sought the setting aside of the Board’s order No. 720-A dated 22-12-81. Under the aforesaid order dated 22-12-81, the Board vacated its earlier order-in-appeal No. 264A dated 7-4-81 under which the penalty on the appellant was reduced from Rs. 12,000/- to Rs. 1000/-.
3. Advocate, Shri Gehani has argued that the facts of the present appeal before the. Tribunal are rather unusual. Referring to the facts of the case, Shri Gehani stated that the Addl. Collector levied a penalty of Rs. 12,000/- on the appellant under Section 112 of the Customs Act as he was found to be the real custodian of wrist watches which were confiscated under Section 111(d) read with Section 111(p) of the Customs Act, under the aforesaid order of the Addl. Collector. The appellant filed the appeal against this order to the Board and the Board dismissed this appeal vide its order No. 107 dated 30-1-81 for non-compliance with Section 129 as it stood at taht time. Shri Gehani explained in reply to my query that at this hearing, the appellant was represented by an Advocate and a hearing was granted to the appellant. He added that as per procedure prevailing at that time, the Board normally heard the stay petition and the appeal together. After the dismissal of the appeal vide the Board’s order dated 30-1-81, the appellant received another notice from the Board for the hearing of the earlier appeal. The appellant thought that it was a golden opportunity of explaining the case once again and therefore he availed of the opportunity without bringing to the Board’s notice the Board’s earlier order No. 107 dated 30-1-81. Shri Gehani stated that under the aforesaid order No. 264A dated 7-4-81, the Board reduced the penalty amount from Rs. 12,000/- to Rs. 1,000/- and otherwise rejected the appeal. With reference to my query, Shri Gehani explained that the Advocate who was heard by the Board did not also bring the earlier order of the Board dated 30-1-81 to the Board’s notice before the second order was passed on 7-4-81, presumably on the same psychological consideration of a fresh opportunity being available to the appellant. Shri Gehani further stated that the first order dated 30-1-81 was passed by Shri S. Venkataraman, Member of the Central Board of Excise & Customs, while the second order dated 7-4-81 was passed by Shri J. Datta, Member, Central Board of Excise & Customs. Thereafter, on its own, the Board passed a third order No. 720-A of 81 dated 22-12-81 under which the Board referred to the first order dated 30-1-81 dismissing the appeal for non-compliance with Section 129 and holding that in view of that order there was no scope for the Board to pass another order dated 7-4-81 and therefore treating the latter order as inoperative and without jurisdiction. The matter was therefore ordered to be closed. It was against this order of the Board dated 22-12-81 that the present petition was filed to the Government. Shri Gehani argued that the third order No. 720-A dated 22-12-81 was passed by the Board without giving any opportunity to the appellant for explaining his case. This amounted to denial of principles of natural justice. Besides, this order had the effect of enhancing the penalty from Rs. 1000/- to the original amount of Rs. 12,000/-. In the order dated 7-4-81 the Board had accepted the indigent status of the appellant and his stand for his inability to pay the amount was vindicated contrary to the decision taken by the Board in the first order in the appeal dated 30-1-81. The second order of the Board dated 7-4-81 was passed after hearing the merits of the appeal. Therefore, the third order dated 22-12-81 passed, suo moto by the Board was not. proper and accordingly Shri Gehani prayed that the same be set aside.
4. Shri Senthivel, SDR, argued that the first order of the Board dated 30-1-81 was passed after giving an opportunity for hearing and there was complete compliance with the principles of natural justice. The Board had not accepted the appellant’s plea of financial, hardship and therefore it did not waive the provisions of old Section 129 of the Customs Act. The first order of the Board dated 30-1-81 could not therefore be questioned on any legal grounds. This order was also not challenged by the appellant, before the Government of India in Revision Application under old Section 131 of the Customs Act. In view of this legal position, the second order of the Board dated 7-4-81 reducing the penalty from Rs. 12,000/- to Rs. 1,000/- was nullity in law when this position was discovered the same was corrected by the Board vide order dated 22-12-81. It was actually not necessary for the Board to pass a formal order like the one dated 22-12-81 and a mere communication through a simple letter could have sufficed. The appellant had not felt himself grieved with the first order of the Board dated 30-1-81 but had filed the present application which was transferred to the Tribunal, only against the third order of the Board dated 22-12-81. The order dated 7-4-81 was not operative and was without jurisdiction and hence the relief, if accorded, could not be given to the appellant. It was immaterial as to which officer whether, Shri S. Venkata-raman or Shri J. Datta passed the order. Both these officers had passed the orders in the legal capacity of the Central Board of Excise & Customs. In view of this position, the Board’s order dated 30-1-81 was correct and the same had to be upheld. Shri Senthivel also reiterated his argument that no Revision Application had been filed against this order of the Board dated 30-1-81. In view of the circumstances, he reguested that the present appeal be dismissed.
5. Shri Gehani contended in reply that the Board’s order No. 720A dated 22-12-81 was passed in terms of old Section 128 of the Customs Act and therefore it was a valid order. It cannot, therefore, be treated as a nullity. He, However, conceded that the Board could review the order of the Collector under old Section 130 of the Customs Act but that the Board had no powers to review its own order. He reiterated his request that since the applellant had paid the penalty amount of Rs. 1000/-, as ordered by the Board, in its order No. 264A dated 7-4-81, the present appeal should be allowed.
6. I have examined the submissions made by the appellant and the Respondent. As initially submitted by Shri Gehani, the facts of the case are rather unusual. They have arisen not only because of the appellant’s psychological bent of mind but of the gross failure of his Advocate’Shri G.N. Alreja to bring to the Board’s notice of the correct facts of the case. Therefore, at the initial stage, I cannot conceal my dismay at the failure of the Advocate Shri Alreja in this behalf. So far as the merits of the case is concerned, it is seen that- the appeal of Shri Bohra was correctly disposed of by the Board in its Order No. 107 of 81 dated 30-1-81. This was a legal and proper order and after the same was passed, the appeal of Shri Bohra did not survive. Since there was no appeal pending with the Board, the Board’s order dated 7-4-81 cannot be treated as valid and operative. This is not an order of the Board for reviewing the Collector’s Order. It was immaterial which Officer passed the order while exercising the function under old Section 128 of the Customs Act, The impact of the order dated 7-4-81 was to review the Board’s earlier decision dated 30-1-81 and the Board did not have any such power under the law to review its own order. Therefore, the order of the Board dated 7-4-81 is not legal or valid. In the aforesaid circumstances, I cannot accept the Advocate’s plea that this order dated 7-4-81 of the Board vindicated the appellant’s stand of the financial hardship to comply with the requirement of old Section 129 of the Customs Act. As pointed out by the learned SDR, the Revision Application has not been filed to the Government against the Board’s order dated 30-1-81. It has accordingly become final in law. The same cannot, therefore, be changed by a subsequent order of the Board. The argument that the third order dated 22-12-81 was passed without giving any opportunity to the appellant to explain his case, has no merit. If he has already paid the reduced amount of penalty of Rs. 1000/-, it is upto the appellant to seek its refund from the Customs Authorities if the same is permissible. So far as the application which has been transferred to the Tribunal is concerned, it is seen that as per his own statement in this application, Shri Bohra has said that he has felt aggrieved with the Board’s decision dated 22-12-81. This is a decision which rectified an illegality. Even though Shri Bohra feels aggrieved with the decision, there is no lacuna in this order. Considering these circumstances, I find that there is no merit in Shri Bohra’s appeal and I reject it accordingly.