Harish Chander, Member (J)

1. Collector of Customs, Calcutta has filed two applications in terms of the provisions of Section 129D(4) of Customs Act, 1962 to be disposed of as appeals. The said applications were presented in the Registry on 24-11-1983. Since a common issue is involved in both the applications, these are disposed of by a consolidated order.

2. The Bench had pointed out to the Ld. S.D.R. that the applications, which are being treated as appeals, have not been filed properly. In the applications in Form C.A. 5, Assistant Collector of Customs, Calcutta has been shown as appellant whereas the same should have been the Collector of Customs, Calcutta. To this query Shri M.C. Thakur, Ld. S.D.R. has made a request that necessary permission for rectifying the defect may be granted. The learned advocates for both the respondents have no objection for granting opportunity to the appellant for rectifying the defect.

3. After hearing both the sides, necessary permission for the rectification of the defect was granted and the appellant had duly filed revised C.A. 5 form duly signed by the Collector of Customs, Calcutta.

4. On merits, Shri S. Roychowdhury, Ld. Barrister and Sr. Advocate, who has appeared on behalf of Metro Exporters Pvt. Ltd. and Shri S.D. Nankani, Ld. Advocate, who has appeared on behalf of Jayant Oil Mills Pvt. Ltd., have raised a preliminary objection that the applications on form C.A. 5 filed by the revenue in terms of the provisions of Section 129D(4) of the Customs Act, 1962 are not maintainable as the so called extracts from the impugned orders passed by the Collector of Customs, Calcutta were not orders passed by him as an adjudicating authority and the orders passed by him were the orders in his administrative capacity as Collector of Customs, Calcutta. Shri Roychowdhury, Ld. Barrister, has briefly stated the facts and has argued that the Bill of Entry was presented on 28-12-1982 and the order of clearance of the goods for home consumption was passed on 12-1-1983 under Section 47 of the Customs Act, 1962 and the assessment was completed under Section 17 of the Customs Act, 1962. Shri Roychowdhury, the Ld. Barrister has pleaded that the impugned order passed by the Collector of Customs, which is in the nature of an extract and an administrative order, was never communicated to the respondent and as such is a nullity and of no legal consequence. Shri Roychowdhury has argued that earlier the respondents had filed detailed written arguments and the same may be considered. The written arguments filed by the respondent are reproduced below :-

---. The above appeals have been purportedly filed by the Collector of Customs, Calcutta, in terms of Order No. 104R and 105R, dated 12-10-1983 passed by Shri J. Datta, Member, Central Board of Excise and Customs purportedly under Section 129D(1) of the Customs Act, 1962. The subject matter of challenge is said to be an alleged or purported order of the Collector of Customs, Calcutta, dated 7-1-1983 contained in an office file, extract of which had been made Annexure "A" to the said order of the Board.

At the commencement of the hearing of the said appeals an objection was taken on behalf of the respondents in regard to maintainability of the said appeals by way of preliminary or threshold issue. It has been, inter alia, submitted that the Learned Tribunal being a creature of the statute - its powers, authorities or jurisdiction are circumscribed and/or have been delineated by the provisions of the statute. The Learned Tribunal has no inherent power to entertain an appeal unless such power has been specifically conferred on the Tribunal by the statute.

The Learned Tribunal derived its jurisdiction under Sub-section (4) of Section 129D to entertain an application filed by a Collector of Customs and treat the same as a regular appeal provided the following conditions precedent for exercise of jurisdiction are complied with or found to be in existence:

(i) The said appeal h