Indian Telephone Industries Ltd., Madras vs Collector Of Customs, Madras>1983(06)LCX0039

1983(06)LCX0039

IN THE CEGAT, SPECIAL BENCH `B’, NEW DELHI

S/Shri B.B. Gujral, Vice-President; A.J.F. D’Souza, Member (T) and

M.G.S. Murthy, Member

INDIAN TELEPHONE INDUSTRIES LTD., MADRAS

Versus

COLLECTOR OF CUSTOMS, MADRAS

Order No. B-579/83, dated 17-6-1983

Advocated By : Shri S. Sriraman, for the Appellant.

Shri K.K. Ajwani, D.R., for the Respondent.

[Order]. - The appellants namely M/s. Indian Telephone Industries Ltd., Madras imported plug-in-unit which was assessed by the Customs Authorities under Heading 90.29(2) read with 90.28(1) of the Customs Tariff. Their claim for concessional rate of duty under Customs Notification No. 76, dated 18-6-1977 was rejected by the Assistant Collector. The Appellate Collector also rejected the appeal on the ground that the plug-in-unit imported by the appellants are appropriately classifiable under Heading 90.29(2) read with 90.28(1) of the Customs Tariff. The appellants thereafter preferred a Revisional Application to the Government of India which has been transferred to the Tribunal for disposal. In their appeal, the appellants have not given any reason at all as to why the classification of goods imported by them should be changed to Heading 85.22 or 85.18/27(1) as requested by them. They merely stated “we now request to kindly consider our Revision Application on the basis of the catalogue”. A copy of the catalogue produced shows that the plug-in-unit is a dual trace plug in Amplifier. However, the nature and function of the item have not been clearly mentioned. The Representative of the Appellants also could not make any submissions before the Bench regarding the nature and functions of the imported item in question. The goods no longer under the Customs control and it would be impossible at this stage to determine de novo the question of fact which are more appropriately gone into at the time of original assessment. The Departmental Representative also pleaded his inability to make any comments in the absence of any evidence documentary or otherwise in support of the appeal.

The Bench has considered the points made by both the parties and agrees with the Departmental Representative that in absence of necessary documentary evidence, it would not be possible to go into the question of re-classification of the goods at this stage. The Bench, therefore, finds no reason to interfere with the orders of the lower authorities and rejects the appeal.

EDITOR’S COMMENTS

Under Section 35C of the Central Excises and Salt Act, 1944, the Tribunal can pass such orders as it thinks fit either confirming, modifying or annulling the orders appealed against or can remand back the case to the lower authority for a fresh adjudication or otherwise can itself entertain fresh evidence.

Since a regular appeal to the Appellate Tribunal has been provided for and also because of the wording of the various statutory provisions, the Appellate Tribunal either acting as first appellate authority or second appellate authority can examine the question of fact as well as question of law and if necessary, it can entertain fresh ground and evidence for deciding an appeal before it. Being a final fact finding authority and a regular Appellate Court, the Appellate Tribunal cannot refuse to exercise its jurisdiction on the ground that there is no evidence or material before it to determine the correctness of the order appealed against, as has been done in the present case. In fact the Appellate Tribunal being a regular court of appeal is duty bound to adjudge the legality and correctness of the order appealed against, and if it finds that the material on record is not sufficient, then it can either call for additional evidence as permissible under Section 35C(i) of the Central Excises and Salt Act, 1944 or, otherwise, can remand back the case to the original authority for fresh adjudication in the matter because the appellate powers are conferred on High Courts or Tribunals to scrutinize the correctness of the impugned decision of the lower authorities. (AIR 1962 Punj. 94).

It appears that in the present case the Tribunal has wrongly assumed that dealing with an appeal in a classification matter amounts to going into a question of re-classification of goods. Since the Tribunal is a final fact finding authority and the proceedings of appeal before the Tribunal are merely continuation of the original proceedings initiated by the lower authority (AIR 1965 S.C. 1585), the determination of correct classification by the Appellate Tribunal does not amount to re-classification as once the Tribunal passes an order, the orders of all the lower authorities merge into it.

The whole purpose of creating three Members’ Benches at the quasi judicial stage was to attain uniformity in the matter of classification and valuation on all-India basis, so that interpretation of fiscal statute may not differ from person to person, time to time and place to place, resulting in discrimination to the tax-payers. The decision of the Appellate Tribunal are not judgments pre inquriam but are binding as a precedent on lower authorities. If the appellant or the respondent has failed in placing any evidence, document or material on record before the lower authority or the lower authorities have reached to a finding without sufficient material on record, the Tribunal should not fail to exercise its powers to determine the correct classification in such cases or to remand the case for proper adjudication.

The proceedings before the Tribunal are not in the nature of writ proceedings or discretionary revisionary proceedings where in order to invoke the jurisdiction, the appellant is under an obligation to show that there is material on record to interfere with the order of the lower authority, but in the nature of proceedings and being regular court of appeal, the role of the Appellate Tribunal is rather to see that there was sufficient material on record to justify the decision of the lower authority, specially when the proceedings before the lower authorities were not truly adversary proceedings and the authority below while passing an order at a time has acted as a party as well as a judge.

Equivalent 1983 (14) ELT 2388 (C.E.G.A.T.)