Can Chief Commissioner adjudicate and if so who is the appellate authority?
As per Section 129 A (1) of the Customs Act, the Appellate Tribunal (CESTAT) can entertain appeals arising out of the orders of
1 Commissioner of Customs as an adjudicating authority
2 Commissioner (Appeals)
3 Certain orders passed by the Board prior to 1982
The provision for appeal to the Tribunal in Central Excise cases is identical.
Now what will happen if an adjudication order is passed by the Chief Commissioner as an adjudicating authority? Normally in Customs or Central Excise, the Chief Commissioner is not expected to or required to pass an adjudication order. The instructions on adjudication powers of officers do not mention Chief Commissioner as an adjudicating authority. But perhaps by the provision that a senior officer can exercise the powers of a junior officer, the Chief Commissioner can exercise the adjudication powers of all officers ranging from Assistant Commissioner to Commissioner. This may be perfectly logical but will create impossible ridiculous situations when these orders are to be appealed against. As per Section 129 A of the Customs Act and Section 35 B of Central Excise Act, the Tribunal cannot entertain an appeal from the Chief Commissioner. So the Chief Commissioner’s order becomes un-appealable. Quite an appealing proposition for the government!.
But you may say, the Chief Commissioner is only acting as a Commissioner and so his order is to be treated as an order by the Commissioner and so the appeal will lie to the Tribunal. But then what happens if the Chief Commissioner passes an order as the Assistant Commissioner? Here the appeal will lie to the Commissioner (Appeals) who is a subordinate of the Chief Commissioner and whose annual confidential reports are written by the Chief Commissioner. Can the Commissioner (Appeals) sit in judgement over an order passed by his own Chief Commissioner and will any Commissioner (Appeals) have the guts to quash the orders of his Chief Commissioner?
We have come across an order recently passed by a Chief Commissioner which is in appeal before the Tribunal. The Tribunal had originally remanded the case to the Commissioner and on remand, instead of the Commissioner, the Chief Commissioner adjudicated the case and the case is back with the Tribunal on appeal from the Chief Commissioner’s order. Incidentally the Tribunal set aside part of the order passed by the Chief Commissioner.
The Northern Bench of the Tribunal had in held that there is no provision under the Customs Act or Central Excise Act for the Tribunal to entertain an appeal against an order passed by the Chief Commissioner. But now the Chennai bench of the Tribunal has admitted and decided an appeal against order of the Chief Commissioner.
Board should immediately issue clarifications directing the Chief Commissioner not to pass adjudication orders as the only remedy available to the assessee in such cases would be a writ in the High Court.
See details of the case in our Breaking News today.