IMPORTANT POINT
Appeal against order passed by Superintendent of Customs & Central Excise is to be filed before Commissioner (Appeal) though order is based on decision taken by Collector, and appeal filed before CEGAT is without jurisdiction.

ORDER

This appeal is against a judgment dated 23-6-1998 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, West Regional Bench at Mumbai.

2. Facts briefly stated are that the respondent filed a Bill of Entry in respect of ship M.V. Olinda imported by them for purposes of breaking. The respondent showed the light displacement tonnage (LDT) as 7009 metric tons. This declaration was not accepted by the Superintendent of Customs and Central Excise. The respondent, thus, approached the Assistant Collector. The question was how LDT was to be calculated. It appears that between the Assistant Collector and the Collector there was some internal correspondence on this aspect. The Collector took a policy decision on how LDT was to be calculated. The Collector conveyed this decision to the Assistant Collector by his letter dated 25-3-1992. Pursuant thereto the Superintendent of Customs and Central Excise passed an order dated 2nd April, 1992 in respect of vessel M.V. "Olinda". Of course the order dated 2nd April, 1992 is based on the decision of the Collector. However, the order remains that of the Superintendent of Customs and Central Excise.

3. The respondent filed an appeal directly before CEGAT. CEGAT has disposed of this appeal by the impugned order. CEGAT negatived a contention that the appeal was not maintainable before them on the basis that the Superintendent s order is nothing more than a communication of the order passed by the Collector (Appeals). CEGAT held that the appeal was in fact against the Collector s order.  

4. In our view, the reasoning of CEGAT cannot be sustained. The decision taken by the Collector was not taken in his capacity as Collector (Appeals) Also the order by which respondent is aggrieved is the order passed by the Superintendent. An appeal against that order has to be filed before the Commissioner (Appeals) under Section 128. By virtue of Section 129A, CEGAT has no jurisdiction to entertain such an appeal.

5. It is clear that the impugned order is passed without any jurisdiction. Therefore, it cannot be sustained. We, thus, set aside the order. The appeal is accordingly allowed. There will be no order as to costs.

6. We clarify that we have not gone into the merits of the matter and that it will be open to the respondent to adopt such remedy as they may be advised, if in law they are entitled to do so.

Appeal allowed.

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