2008 PLP 1094 (PTD)

8. Mr. S.A. Wasti, consultant, stated during the hearing of the complaint that the complaint was directed against the appellate order where it was, stated in paragraph 4 that he (S.A. Wasti) appeared on 10-7-2003 and reiterated his earlier points of view etc. He invited attention to paragraph 10 of the complaint were he had solemnly stated that the Collector of Customs (Appeals) did not hold hearing of this case and he was not given an opportunity to appear before him to offer his arguments.

9. Mr. Wasti stated that, in the reply to the complaint, the department has offered no comments on paragraphs 7 to 20, which showed that the allegations made in the complaint had been admitted by the respondent. He specifically invited attention to point mentioned in the department's reply, which according to him, was the basis of the negative attitude taken by the department particularly the Collector (Appeals) in dealing with such cases. It has been stated by the Collector that if the request of the complainants was accepted, the department would have to pay million of rupees as refund to all such importers which were assessed on the same value agreed by the trade body. He averred that the officers should decide the cases and the appeals on the basis of justice and fairplay and not deny their rights merely on the consideration that they would be entitled to obtain rightful refunds if justice was meted out to them. He stated that unfortunately this was the mindset with which the customs officers responsible for adjudication work mostly decided the cases.

10. The Additional Collector of Customs replied that the Collector had conducted hearing on three dates and the record of hearing was available on the file. However, since Probationer Officers were attached with the Collector for training in the adjudication process, mock hearing was also conducted by these officers. However, no findings were recorded by them and they did not make any contribution in the appellate order.

11. Mr. Wasti again emphasized whatever hearing was conducted was done by the Probationer Officers and it was wrong on the part of the respondent to claim that the Collector (Appeals) had also heard the appeal.

12. The Collector (Appeals) has raised objection that the complainant's should have filed appeal in the Appellate Tribunal instead of approaching this office as, according to him, it lay outside this jurisdiction of this office. He has also stated that since the complainants knew that their appeal would fail, they made this complaint on flimsy ground. The Collector has prejudged the decision of the Tribunal. He has in fact admitted the genuineness of the complaint that the appeal was not heard by him as, in his own words, "the sham hearing was conducted by a Probationer Officer". While he has admitted the allegation that hearing was conducted by a Probationer Officer who had no jurisdiction to hear the appeal.

13. It is an established fact that the power to hear and decide the appeal cannot be conferred, even by consent, to any officer other the one notified by the competent authority i.e. the C.B.R., which has the statutory powers to appoint the officers through gazette notifications vesting them with the authority to hear and decide the appeals against the orders passed by the officers lower than the Additional Collector. Only the person who has heard the appeal has to pass the order and the process cannot be delegated; otherwise the order would be illegal. This office has taken cognizance of the complaint against the order passed by the Collector (Appeals) as it has been established that the respondent has: (i) misstated the facts, interpolated the conduct of hearing in the record; (ii) his order is contrary to law; (iii) it is a decision taken in complete disregard of the established practice and procedure, not bona fide and without valid reason; (iv) it is perverse, arbitrary and unjust; (v) it is based on irrelevant grounds; and (vi) it is clear evidence of the inefficiency and the ineptitude of the officer in the discharge of his duty and responsibility.

14. The manner in which the order-in-appeal has been passed by the Collector (Appeals) is thus not only arbitrary but lacks bona fides, and maladministration as defined in subsection (3) of section 2 of Ordinance, XXXV of 2000 is established. In view of the aforesaid circumstances, the argument against the jurisdiction of this office has no merit and is rejected as frivolous.

15. It is recommended that C.B.R:-- (i) take into consideration the case of gross miscarriage of justice in the disposal of his appeal and similar appeals decided by the officer; (ii) set aside the Order-in-Appeals Nos.174 to 177 of 2003 dated 29-7-2003; (iii) entrust the appeals to another officer with the direction to carefully examine the facts of the case, the precedents quoted by the complainants/consultant i.e. the decision of Supreme Court, the High Court, the Appellate Tribunal and the recommendation of this office; (iv) decide the appeal within thirty days; and (v) compliance be reported within forty-five days. S.A.K./97/F.T.O. Order accordingly.