By TIOL News Service

MUMBAI, JAN 11, 2018: IN exercise of the powers conferred by Section 157 of the Customs Act, 1962, the Central Board of Excise and Customs framed the Courier Imports and Exports (Clearance) Amendment Regulations, 1998.

Regulation 14 (Deregistration), clause (2) reads –

(2) Any Authorised Courier or the officer of the Customs authorised by the Principal Chief Commissioner of Customs or Chief Commissioner of Customs, as the case may be in this behalf, if aggrieved by the order of the Principal Commissioner of Customs or Commissioner of Customs, as the case may be passed under sub-regulation (1), may represent to the Principal Chief Commissioner of Customs or Chief Commissioner of Customs, as the case may be in writing against such order within sixty days of communication of the impugned order to the Authorised Courier and the  Principal Chief Commissioner of Customs or Chief Commissioner of Customs , as the case may be shall, after providing the opportunity of being heard to the parties concerned, dispose of the representation as expeditiously as may be possible.

In this case, appeals have been filed before the CESTAT against the order passed by the Chief Commissioner of Customs, Mumbai Zone-III .

The Bench had directed for ascertainment from the government whether the Chief Commissioner is appointed as appellate authority or revisional Authority under the Courier Imports and Exports (Clearance) Regulations, 1998 for hearing grievance of the aggrieved against the order of the Principal Commissioner.

However, no outcome was reported.

The matter was heard recently.

The Bench noted that the issue is whether Regulation made by the Board authorising Chief Commissioner to hear a representation is a bar to the remedy of appeal to the Tribunal against his order.

The CESTAT, thereafter, observed –

"…Reading of provisions of Section 157 of the above Act shows that Board has no power to permit Chief Commissioner to hear a representation against the order passed by the Principal Commissioner since Chief Commissioner is not covered by the definition of the term Commissioner under section 2 of the Customs Act, 1962. It shows that the Chief Commissioner is not vested with any quasi- judicial power except the power of supervision of his subordinates in terms of the relevant regulation authorizing him to hear a representation against order of Principal Commissioner. Therefore, it is high time Board should come out with a proper amendment to law or explain to the Tribunal as to whether the order passed by the Chief Commissioner is in his administrative capacity or in quasi-judicial capacity and whether his order is subject to judicial review by the Tribunal."

Finding that no reply had been received from the Board, the Bench commented that such silence was adding to litigations before the Tribunal.

Adding that a case of a like nature was before the Gujarat High Court in Girish B Mishra - 2013-TIOL-1290-HC-AHM-CX, the Bench opined that the said decision may be adverted to by the Board while replying to the Tribunal.

The CESTAT further observed –

"3. We make it clear that if no reply is received by the Tribunal by 1st January 2018 it shall be treated that Chief Commissioners order under the above Regulation is an appealable order before Tribunal and Tribunal shall proceed with the matter as an appeal filed against his order.

4. It would be proper for the Dy. Registrar to mark a copy of the order to the Secretary to the Government of India, Department of Revenue, Ministry of Finance, for appropriate guidelines to the Board so that the matter of public interest shall be addressed with utmost expedition."

(See 2018-TIOL-162-CESTAT-MUM)