TaxTMI 
TaxTMI 
2011 (2) TMI 8
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....990, as the Petitioners were importing CPTs and VTDMs against the said licenses and since the same were allowed clearance by the Customs, the Respondent No. 4- Joint Chief Controller of Imports and Exports issued abeyance order with the show cause notice to the Petitioners asking the Petitioners to show cause why the Petitioners should not be debarred from importing the aforesaid items. 3. The Petitioners challenged the same by filing a writ petition being Writ Petition No. 1843 of 1990. That writ petition was disposed of by an order dated 26-6-1990 by this court. The court stayed the abeyance order, but liberty was granted to the Respondent No. 4 to adjudicate the show cause notice. On 25-9-1990, the Respondent No. 4 made an order debarring the Petitioners. The Petitioners challenged the order passed by the Respondent No. 4 in Appeal. That appeal was heard and disposed of by the Additional Chief Controller of Imports and Exports by an order dated 31-1-1991. The Additional Chief Controller of Imports and Exports set aside the debarment order holding that the imports under the Additional Licenses despite public notice were valid. 4. The Respondent No. 3- Chief Controller of Import....
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...., a special provision to that effect has been made. In support of that submission the learned counsel took us through the provisions of the Customs Act, Foreign Exchange Management Act, Income-tax Act. The learned Counsel also submitted that when the Additional Chief Controller of Imports and Exports decides the appeal under Section 4M of the Act, he acts as a delegate of the Chief Controller of Imports and Exports, and therefore an order made by the Additional Chief Controller as a delegate of the Chief Controller of Imports and Exports is virtually an order made by the Chief Controller of Imports and Exports himself and therefore, he is not competent to file an appeal against that order before the Central Government. The learned Counsel relied on the judgment of the Supreme Court in the case of Md.Sharfuddin v/s. R.P.Singh and ors, AIR 1961 SC 1312. 8. The learned Counsel appearing for the Respondents, on the other hand, submits that the appeal which is filed by the Respondent No. 3 before the Central Government under section 4M is in his capacity as a Head of the Department and therefore, such an appeal can be filed. The learned Counsel relied on the judgment of the Supreme Cou....
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.... order was made by the Joint Chief Controller of Imports and Exports in exercise of powers vested in him under Clause 8 of the Import (Control) Order, and appeal against that order was competent under Clause 10(2) of the Import (Control) Order before the Additional Chief Controller of Imports and Exports. Clause 10(2) of the Import (Control) Order reads as under: 10(2) Where any person is aggrieved by any action taken under sub-clause (1) or sub-clause (3) of clause 8 or clause 8A or sub-clause (1) of clause 9 he may prefer an apepal against such action to such authority as the Central Government may, by notification in the official Gazette constitute for the purpose of hearing appeals, within forty-five days from the date of communication of the action taken. 11. It is, thus, clear that a remedy of appeal is provided against the order made under clause 8 to such authority as the Central Government may by the notification in the official Gazette constitute for the purpose of hearing appeals. In exercise of that power, the Government issued notification dated 27-3-1985. We have been given copy of relevant extract from "Hand Book of Procedures" published by the Ministry of Commerce....
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....f the above quoted paragraph 139 shows that in exercise of its power under sub-cause (2) of Order 10 the Government issued notification dated 27-3-1985 providing therein that if the order of debarment has been made by the Joint Chief Controller of Imports and Exports, first appeal will lie to the Chief Controller of Imports and Exports or the Additional Chief Controller of Imports and Exports and the second appeal shall lie to the Appellate Authority in the Government. 13. It is thus clear that the powers of the Chief Controller and the Additional Chief Controller of entertaining the appeal against the order of the Joint Chief controller are concurrent. Perusal of the Memorandum of Appeal that is filed by the Chief Controller before the Central Government shows that that appeal has been filed under Section 4M of the Act. In paragraph 2 of the letter which accompanies the Memorandum of Appeal, the Chief Controller states "After careful and detailed consideration of the order in appeal of the Additional Chief Controller of Imports and Exports and being aggrieved by the said decision I am filing the present appeal under Section 4M of the Imports and Exports (Control) Act, 1947 (As Am....
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.... thus, clear to our mind that when the Additional Chief Controller of Imports and Exports decides the appeal, he acts as a delegate of the Chief Controller of Imports and Exports. 16. The Petitioners had filed the appeal against the order of the Joint Chief Controller. That Appeal was decided by the Additional Chief Controller. The Chief Controller has filed the appeal against that order before the Central Government. The contention of the Petitioners is that the Chief Controller cannot file an appeal against the order passed by the Additional Chief Controller under Section 4M of the Act. The learned Counsel appearing for the Petitioners relied on the judgment of the Supreme Court in the case of Mohd.Sharfuddin, referred to above. It was submitted by the learned Counsel that an appeal under Section 4M can be filed only by "any person aggrieved" and that the Chief Controller cannot be said to be a person aggrieved by the order passed by the Additional Chief Controller. Perusal of the judgment of the Supreme Court in the case of Mohd. Shrfuddin shows that the first question that the Supreme Court was considering in that judgment was "No appeal lay to the Custodian from the orer of t....
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.... such aggrieved person. The words any person aggrieved in the context of the Act can not include any Custodian as defined in the Act. 17. Following observations found in paragraph 7 of that judgment, in our opinion, are relevant. They read as under: 7............Where a statute or rules framed thereunder provide for a dispute between two parties to be decided by a tribunal, it is implicit in that provision that the defeated party is one aggrieved by that decision. But the same cannot be said of a Custodian and the party in whose favour he gave a decision; not can another subordinate officer of the Custodian, who made the decision and who has no statutory duty to appear before the Custodian to put forward the case of the department or lead evidence in support thereof, be equated to a party in a lis. We therefore, hold having regard to the scheme of the Act, that the Assistant Custodian headquarters, Patna is not a person aggrieved within the meaning of S.24of the Act. The appeal to the Custodian, therefore, was not competent. 18. The learned Counsel for the Petitioners also pointed out to us the provisions in different Acts made for filing appeals by the Department against the or....
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....power of his own but only the powers of his principal. The observation in Huth's case (supra) was referred to in Roop Chand's case (supra). In general, a delegation of power does not imply parting with authority. The delegating body will retain not only power to revoke the grant, but also power to act concurrently on matters within the area of delegated authority except in so far as it may already have become bound by an act of its delegate. (See Battelley v. Finsbury Borough Council (1958 LGR 165). 9. In Corpus Juris Secondum, Volume 26, 'delegate' has been described as follows: "As a noun, a person sent and empowered to act for another, one deputed to represent another in a more popular but less accurate sense, a regularly selected member of a regular party convention. As a verb, in its general sense and as generally used, theterm does not imply, or point to, a giving up of authority, but rather the conferring authority upon someone else. At common law, it is the transfer of authority by one person to another, the act of making or commissioning a delegate. Expression 'delegation of authority of power' is a term which like the word 'delegate' does not imply a parting with powe....
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.... in mind here is that a review application is to be made only to the same Judge or if he is not physically available, to his successor. The decision of the Privy Council in Maharajah Moheshur Sing v. Bengal Govt. 3 WR 45 (PC)) to which reference was made by learned Senior Counsel, Shri T. L. Vishwanath Iyer, is very apt in this connection. Adverting to the basic concept of review, it was observed by the Privy Council: (p.47) "It must be borne in mind that a reviewis perfectly distinct from an appeal;that is quite clear from all these Regulations that the primary intention of granting a review was a reconsideration of the same subject by the same Judge, as contradistinguished to an appeal which is a hearing before another Tribunal." 14. Their Lordships added: "We do not say that there might not be cases in which a review might take place before another and a different Judge; because death or some other unexpected and unavoidable cause might prevent the Judge who made the decision from reviewing it; but we do say that such exceptions are allowable only ex necessitate. We do say that in all practicable cases the same Judge ought to review;......" It is, therefore, clear that the ....