ORDER
M. Santhanam, Member (J)
1. The allegations, in so far material, in this Revision Application to the Government of India, transferred to and heard by the Tribunal as an Appeal pursuant to the provisions in Section 131B of the Customs Act, 1962 (the Act, for short) are-
(a) at the time of filing the Bill of Entry on or about 28-9-1976, the value of the cargo (18698.0439 M/tons of urea) was declared on the basis of the fixture notice;
(b) subsequently, however, it was noticed that as per the invoice, the C & F price paid was-(i) US $ 119 M.T. for 3902 M/Tons, and (ii) US $ 123 M.T. for 14976.0439 M/Tons, and not US $ 199 M.T. for the whole quantity as erroneously declared in the B/E and forming the basis for the assessment to duty;
(c) this apart, the stevedoring charges at Rs. 16 per M.T. were included in the assessable value, notwithstanding that the work of stevedoring was got done departmentally incurring an expenditure of Rs. 1,31,705.30;
(d) accordingly, an application for refund dated 21-3-1977 was preferred;
(e) in adjudication, the claim was rejected on the grounds that-
(i) there could not have been two prices or asssessable values in respect of one consignment covered by a single B/E and
(ii) the Appellant had failed to prove the actual expenditure incurred for stevedoring;
(f) an Appeal against the aforesaid order was dismissed for the Appellant’s failure to explain the discrepancy in valuation between the fixture notice and the invoice;
(g) The revision now heard as an Appeal, the sequel.
2. It was along with the Revision Application that the Appellant came forth with various documents that should have been produced in adjudication itself and some more to establish the competence of the Appellant to have
3. It would appear from the documents filed before us that
(a) the M.M.T.C. were the purchasers for themselves (and not for the Ministry of Agriculture, in the Govt. of India) of the cargo of fertilizers, as per contract No. 28/76-F2(4) dated 4-2-1976 with M/s. Woodward & Dickerson Europe, 1-2 Rubland Gardens, Knights Bridge, London;
(b) except for mentioning that Agrind (Short for Ministry of Agriculture in the Govt. of India) were to nominate the final discharging port and accordingly they were to be advised the estimated date of arrival etc., there is nothing to indicate, in the contract that the Ministry of Agriculture are the consignee to whom delivery was to be effected or the true owners by assignment, of the benefits under the contract or otherwise. The B/L dated 22-8-1976 and the invoice dated 24-8-1976, however, show the name of the consignee as the Ministry of Agriculture;
(c) in the Bill of Entry dated 24-9-76 the importer’s name was shown as the Under Secretary, Ministry of Agriculture. The declaration by the Customs House Agent in the B/L was signed by the Senior Dy. Manager of the Appellant;
(d) in a letter No. 3-5/74-FA(G) dated 2-5-75 from the Ministry of Agriculture and Irrigation in the Govt. of India, it was inter alia, stated that the Appellant along with the Indian Potash Ltd. “who are handling the fertilizers at ports would accept the customs duty assessment in accordance with rules and orders and the clarifications given in the preceding paras, safeguarding the interests of the Government and would be responsible for filing, pursuing and setting all legitimate refund claims”;
(e) in another letter dated 10-1-1977, it was stated that there were standing orders that the refund claims be filed by the Appellant and there was no need for permission in individual cases.
4. On the question relating to the competence of the Appellant to have filed the Revision Petition, reliance was placed upon an order Nos. 92 and 93 of the Special Bench ‘A’ in transferred Appeals Nos. 1184/81-A and 1185/81A wherein the question was considered and it was held that the Appellant had the requisite competence to file the Revision Petitions (which were heard as the aforesaid Appeals in consequence of transfer to the Tribunal pursuant to Section 131-B of the Act) on the basis of the two letters aforesaid issued by the Ministry of Agriculture. The decisions of this Tribunal in 1983 E.L.T. 1835 (Oil Dale Trading Pvt. Ltd. v. Collector of Customs, Calcutta) and 1984 (18) E.L.T. 465 (Indian Organic Chemicals Ltd., Madras v. C.C., Madras) were also relied upon by the Appellant herein. It was contended further that, in any view, it was the Appellant that filed the B/E and, accordingly, a person aggrieved and hence entitled to file an Appeal in terms of Section 129-A of the Act. The Appellant was also the importer in terms of the definition in Section 2(26) of the Act, as a person who, if not the owner, had at any rate, held himself out to be the importer.
5. Regarding the competence of the appellants to file the refund claims, we are of the view that this matter has been carefully considered and concluded in the earlier orders of the Tribunal, cited supra. An identical preliminary objection raised by the respondents was over-ruled and we respectfully agree with the reasons stated therein. ‘
6. Regarding the main appeal itself we find that the appellants have produced various documents before us which require minute scrutiny before the refund application is disposed of one way or the other. We accordingly allow the appeal, set aside the order of the authorities below and remand the matter for re-deciding the issue regarding the assessable value of the goods in the light of documents now produced.
M. Gouri Shankar Murthy, Member (J)
7. I have reservations on the question of competence of the Appellant to have filed the instant Revision Application to the Govt. of India, now being heard as an Appeal. May be, it is of little consequence in a case of this nature between two agencies or limbs of the Government of India and, accordingly, we feel bound in our decisions in Appeal Nos. 1184/81-A and 1185/81-A. Nevertheless, I may place on record, for what it is worth, the following with reference to the question of competence as argued before us :-
(A) The decisions in 1983 E.L.T. 1835 and 1984 (18) E.L.T. 465 are distinguishable on facts. There was evidence in the case reported in 1983 E.L.T. 1835 that the Appellant was the owner of the cargo, having purchased the same in a sale on the high seas and accordingly the Appellant was the person aggrieved and accepted as such in the lower forums. In the second case [1984 (18) E.L.T. 465], the B/E itself, indicated the Appellant as the importer. In the instant Appeal, however, the Appellant, admittedly, is neither the owner of the cargo nor the importer; it is the Under Secretary, Ministry of Agriculture that is shown in the B/E to be the importer-not the Appellant at all. Nor is there any evidence adduced as to how the Under Secretary became the owner of the cargo purchased by the M.M.T.C. (while it may be that he was, merely, the consignee);
(B) The question of locus standi or the competence of the Appellant to have filed the instant Revision now heard as an Appeal, it may be stated with respect, is a question of pure law not dependent on the determination of any new questions of fact. When a question of law is raised for the first time even in a court of last resort, it is not only competent but expedient in the intersts of justice, to entertain the plea. The expediency can be doubted only if the plea cannot be disposed of without deciding nice question of fact in considering which the court of ultimate review is placed in a much less advantageous position, than the courts below. [Lord Watson in (1982) AC 473-Connecticut Fire Insurance Co. v. Kavanagh], Accordingly, in AIR 1951 SC 16 [Yeshwant Deoras v. Walchand Ramchand] allowing a plea of “fraud” to be raised for the first time, the Hon’ble Supreme Court observed “If the facts proved and established are sufficient to make out a case of fraud within the meaning of Section 18 (of the Limitation Act) this objection may not be serious, as the question of applicability of the Section is only a qustion of law and such a question can be raised at any stage of the case and also in the final court of appeal”. So also in AIR 1965 SC 1325 [Chittory Subbanna v. Kudappa Subbanna] it was observed, inter alia, that a pure question of law not dependant on the determination of any question of fact should have been allowed to be raised in appeal, as they are allowed for the first time in later stages also, “be it in the Court of last resort”;
(C) Acceptance by the Revenue of the Appellants’ locus standi in the earlier stages, even if categorical and not merely inferred from conduct, cannot, therefore, preclude or estop the Revenue from raising the issue as a pure question of law at this stage. If this were not so, no new question of law can be’ raised if the failure to put it in issue earlier estops the plea altogether. As it is, there is nothing like an acceptance of the locus standi of the Appellant in an Appeal under Section 128 of the Act. Failure to plead a legal issue re locus standi cannot amount to an acceptance. There is nothing contrary or unjust in deciding the issue, if at all it can be raised. In any view of the matter, the Appellant had been afforded ample opportunity to produce evidence even before us to prove competence in filing the appeal. There is no question, therefore, of any prejudice to the appellant in view of our consideration of the question of competence in the instant appeal before us.
(D) There is no question of the Appellant holding out to be the importer [S. 2(26) of the Act] when the importer is actually shown to be the Under Secretary, Ministry of Agriculture in the B/E.
(E) Nor can the Appellant really feel aggrieved if he were merely the Customs House Agent as claimed in the B/E. It is only if duly appointed and authorised that, though merely an agent, the Appellant could have either applied for a refund or pursue the matter in Appeal;
(F) If the matter were res Integra, a question could have arisen if the Appellant could have been duly appointed as the Agent of the Ministry of Agriculture in the Govt. of India, even if it were assumed that the benefit of the contract between the M.M.T.C. and M/s. Woodward & Dickenson was duly assigned and accordingly the said Ministry in the Govt. of India became the owner thereof and hence the importer. A contract of Agency, like any other contract concluded for the Govt. of India, has to comply with the mandatory requirements of Article 299 of the Constitution. It is a moot point if the two letters adverted to in para 3(d) and (e) of my learned Brothers’ judgment comply with such requirements of Article 299, so as to constitute the Appellant as an agent of the Govt. of India.
8. These issues have not been gone into apparently in the earlier decision of the Tribunal. However, since they are of little consequence, as already observed, I agree in the order proposed to be made by my learned Brothers.