Commissioner of Customs vs Motison''s International

K.S. Radhakrishnan, J.—This Original Petition has been filed by the Commissioner of Customs to require the Appellate Tribunal to refer the question as to whether the Assistant Commissioner of Customs (Review Cell) is entitled to file a reference application u/s 130(1) of the Customs Act, 1962. Request for reference was made by the Assistant Commissioner of Customs (Review Cell) before the Tribunal by invoking the powers u/s 130 of the Act against the final order of the Tribunal in Order No. 2213 to 2216/97 dated 13.8.1997.

Preliminary objection was raised by the respondent herein before the Tribunal regarding the maintainability of the reference application made by the Assistant Commissioner of Customs. Placing reliance on various decision rendered by the Tribunal in 1985 ECR 1205 , 1985 ECR 156 , 1995 (56) ECR 728 , the Tribunal concluded that the Assistant Commissioner of Customs had no jurisdiction to make an application u/s 130 of the Act for referring the question of law to the High Court.

Section 130(A) of the Act specifically says that the Commissioner of Customs or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order u/s 129B passed, by application in the prescribed form, accompanied, where the application is made by the other party by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal and subject to other provisions contained in the Section the Appellate Tribunal shall within one hundred and twenty days of the receipt of such direction, draw up a statement of the case and refer it to the High Court.

The reference application was made before the Tribunal u/s 130 of the Act. Section 130 of the Act confers power on the Commissioner of Customs. Commissioner of Customs has been defined u/s 2(8) of the Act. It says that Commissioner of Customs, except for the purposes of Chapter XV, includes an Additional Commissioner of Customs. As far as this case is concerned, the application has been filed by the Assistant Commissioner of Customs. Further Section 6 of the Act enables the Central Government by a notification in the Official Gazette, entrust either conditionally or unconditionally to any officer of the Central or the State Government or a local authority any functions of the Board or any officer of customs under the Act. Admittedly, in this case, no notification has been issued by the Central Government conferring powers on the Assistant Commissioner of Customs to make a reference application u/s 130 of the Act. Section 52 of the Act also authorises the Central Government, by notification in the Official Gazette, subject to such conditions, if any, as may be specified in the notification, confer powers to notify the authorities. Admittedly, no such notification has been issued by the Central Government conferring powers on the Assistant Commissioner of Customs.

Counsel for the respondent also pointed out that this petition itself is not maintainable as the remedy open to the petitioner was to file a Writ Petition under Article 226 of the Constitution of India. Since in the final order of the Tribunal there is a finding that the Assistant Commissioner of Customs has no jurisdiction to refer the matter u/s 130(1) of the Act, this Original Petition cannot be entertained. Hence, the same stands dismissed without prejudice to the rights of the petitioner, if any, to move appropriate forum in these questions of law.