J.H. Joglekar, Member (T)
1. The Commissioner of Customs (Preventive), Ahmedabad vide his order dated 10-6-1996 confiscated certain offending goods but refrained from imposing penalty on any of the 10 no-ticees to the show cause notice. Against the order of confiscation an appeal was filed. The Tribunal vide Order Nos. 3772-73/96-WZB, dated 11-12-1996 disposed of the appeal by reducing the fine in lieu of confiscation prescribed by the Commissioner. This order was passed on 28-4-1997. The Central Board of Excise and Customs directed the Commissioner to make an application to the Tribunal for determination of legality and propriety of the Commissioner’s order. This order was passed by the Board in terms of the power vested under:
Section 129-D(1) of the Customs Act, 1962, the subject provision reads as under :
SECTION 129D. Powers of Board of Commissioner of Customs to pass certain orders. – (1) The Board may, of its own motion, call for and examine the record of any proceeding in which a Commissioner of Customs as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Board in its order.
2. In terms of this direction the present appeal was filed on 11-6-1997. An application was made by the respondents for early hearing of the appeal. This case came up for hearing on 7-8-2000, when certain directions were made by the Bench to both sides. Today when the early hearing application was taken up for disposal Shri V.S. Nankani, Advocate appearing for the respondents submitted that the appeal was improperly filed and that it did not survive.
3. We have seen the appeal papers including the C.A. 3 form which have been signed by the Assistant Commissioner of Customs. The Commissioner in his forwarding letter to the Registrar declared that he had been directed by the Board for making the application under Section 129D(1) of the Customs Act. In this circumstance we find the plea of Shri V.S. Nankani that the appeal is improperly filed to be correct. The citation of the subject section made above indicates that it is only the Commissioner, who has to apply to their Tribunal. Thus, the appeal has to be filed by him that own the prescribed documents such as declarations and verifications have to be personally signed by him. In the subject case where the ld. Commissioner has signed the forwarding letter the appeal has been filed by an Assistant Commissioner of his office. Such authority cannot be delegated, nor is there a delegation made.
4. An identical issue had come up before the Tribunal in the case of Malhotra Steel Products v. CCE, Mumbai-III [2000 (38) RLT 480 (CEGAT)] where the Commissioner had directed the Assistant Commissioner to file an appeal, but then the appeal was filed by the Superintendent. The Tribunal observed as below:
“The interpretation of the wording “such authority” in the said provision of law would make it necessary that the officer making the application must be of the same authority as the one who made the disputed order”.
5. Following law so laid down we hold that the present appeal has been filed not in terms of the authority given under Section 129D of the Act. The appeal does not survive and it is dismissed.