1993 (10) TMI 146

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....stoms authorities assessed the goods under Heading 84.40(2) at 60% under TI 33C CET as domestic electrical appliances. The applicants deposited the amount of duty under protest, and subsequently applied for refund of excess duty charged which claim was rejected by the Assistant Collector of Customs, Refund Section. On appeal, the Collector of Customs (Appeals), Bombay reversed the order of the Assistant Collector and classified the goods under Heading- 84.40(1) for the purpose of basic customs duty. Regarding countervailing duty, the appellate authority held that only a part of the goods would be classified under TI 33C while the other part was classifiable under TI 68. On 29-9-1982 a show cause notice under Section 131(3) of the Customs Act, 1962 was issued by the Central Government proposing to set aside the order-in-appeal dated 18-4-1981 passed by the lower appellate authority. Subsequent to the filing of the reply to the above notice, the CEGAT was constituted and by virtue of Section 131B, the revision proceedings before the Central Government stood transferred to this Tribunal and numbered as the above appeal. 2.1 The appeal came up for hearing before the Tribunal and at ....

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....-in-appeal, etc., could not be filed by the Department and praying for waiver of filing of the documents and decision of the appeal on available records. 3. Shri A.K. Agarwal, learned Counsel appearing on behalf of M/s. Ruby Advertisers submits that the non-availability of all records is fatal to the right of the Department to issue notice for review under Section 131(3). He further submits that the scope of revision proceedings is different from those of appeal proceedings, and since on transfer to the Tribunal the revisionary proceedings are deemed to be proceedings in appeal, the scope of the proceedings before the Tribunal is enlarged and the Tribunal will have to look into the order-in-original passed by the Assistant Collector as well as the order of the lower appellate authority for proper disposal of the appeal before it. He submits that the Rules relating to appeals should be followed after a revision application is transferred to the Tribunal and treated as an appeal and in this case as the requirement under Rule 9 of the CEGAT (Procedure) Rules has not been complied with by the Revenue the appeals merit rejection. He contends that the requirement of Rule 9 is mandator....

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....mits that there has been no intentional negligence on the part of the Department and no prejudice will be caused to the respondents if the order-in-original is not on record as the matters can be decided on the basis of available papers. 5. In rejoinder, Shri L.P. Asthana submits that the CEGAT (Procedure) Rules apply to transfer proceedings and procedural requirements are retrospective in operation. The filing of the order-in-original is absolutely necessary as the show cause notice is not severable in nature. 6. We have carefully considered the submissions of both sides, perused the records and gone through the host of citations relied upon. The undisputed position that emerges is that the copy of the order-in-original is not available in spite of best efforts of the Department to place it before us. The affidavit filed by Shri R. Mukhopadhyay, CC (Judicial) to this effect is not disputed by the importers, who also do not have a copy thereof. The affidavit is reproduced below: "Affidavit to waive the direction on filing of records I, R. Mukhopadhyay, Collector of Customs (Judicial), Custom House, 33, Rajaji Salai, Madras 600 001, do hereby solemnly affirm and sincerel....

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....n the above subject. As you may be aware that this is a transferred review show cause notice which came before the Tribunal as an appeal. The show cause notice F. No. 380/88/B2-Cus. II, dated 29th September, 1982 was issued by the Central Government in this case proposing review of order-in-appeal No. S/49-645/81R dated 18-4-1991 passed by the Appellate Collector of Customs, Bombay on the appeal of M/s. Ruby Advertisers against Order No. S/6-B-3258/80R, dated 17-12-1980 passed by the Assistant Collector of Customs (Review), Custom House, Bombay. When the case papers might have been transferred from the Revision application unit of the Central Government to the Registry of the Tribunal, it appears that the case files which might have been sent by the Collector to the Central Government got delinked. As appears from the letter F. No. CD/SB/720/87/267 dated 9th February 1988 of Mr. J. Gopinath, the then SDR only reviewed the show cause notice and the other correspondence between the Collector of Customs arid the Ministry were available in the Registry's file and with this letter he forwarded to the Custom House, copy of the review show cause notice and the correspondence. The....

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....ere an appeal filed before it" containing in Section 131B(2) would not mean that the revision application filed before the Central Government has become an appeal before the Tribunal for all purposes and the proceedings still retain the character of a revision application, (emphasis supplied). In the case of Khira Steel Works v. CCE, Ahmedabad - 1988 (38) E.L.T. 330, the Collector (Appeals) had passed the impugned order without even noticing that the appeal had been filed within the period of limitation and he had rejected the appeal as time-barred. The appeal had been filed in April, 1987 but not in proper form and without court fee and, therefore, in October 1987, the defects were rectified arid the appeal was filed once again. The Tribunal held that the defects were procedural in nature and should not have stood in the way of treating the communication of the April 1987 as an appeal and procedural error or irregularity should not hamper substantial justice (emphasis supplied). 7.1 The case law cited by the learned Counsel for the importers is not strictly applicable to the facts of the present appeals. In the, case of Hari Shankar and Others v. Rap Girdhari Lal Chowdhur....

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....uld have been allowed to appear as a witness. In the case of Ramji Missar v. State of Bihar - AIR 1963 SC 1088, the interpretation of the word "may" occurring in Section 11 of the Probation of Offenders Act, 1958 arose for determination. Sub-section (3) of Section 11 provided that in a case where any person under 21 years of the age is found guilty of having committed an offence and the Court by which he is found guilty declined to deal with him under Section 3 or Section 4 of the Act and passes any sentence of imprisonment with or without fine from which no appeal lies or is preferred, then the Appellate Court may either of its own motion or on an application made by the convicted person or the Probation Officer, call for and examine the record of the case and pass such order as deemed fit. The Hon'ble Supreme Court observed that though the word "may" occurring in Section 11(3) might connote merely an enabling or permissive power in the sense of the usual phrase "it shall be lawful", it is also capable of being construed as referring to a compellable duty particularly when it refers to a power conferred on a Court or judicial authority. The interpretation of Rule 4(2) of the....