Delhi High Court
M/S.M.S.Shoes East Ltd. vs Union Of India & Ors. on 20 July, 2016
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8315/2002
M/S.M.S.SHOES EAST LTD. ..... Petitioner
Through Mr. J.S. Sinha with Mr. M.P. Sahay,
Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr. Kamal Kant Jha, Sr. Panel
Counsel with Mr. A.K. Bhan, for R-1
Ms. K. Enatoli Sema, Adv. for
respondents 2 & 3.
CORAM:
JUSTICE S. MURALIDHAR
JUSTICE NAJMI WAZIRI
ORDER
% 20.07.2016
1. The challenge in this petition is to an order dated 20 th August 2002
passed by the Joint Secretary to the Government of India, Department
of Revenue, Ministry of Finance, rejecting the revision application
filed by the petitioner under Section 129DD of the Customs Act, 1962
(„CA‟) against an order in appeal dated 19th January 2001 passed by
the Commissioner of Customs (Appeals), New Delhi.
2. The discussion of facts of the case may not be necessary in view of
the short ground on which the present petition is being disposed of.
3. One of the grounds urged by the Petitioner in the rejoinder is that
the impugned order was in fact not signed by the Joint Secretary
(„JS‟). This fact was noticed in the following order passed by the
Court on 4th April 2016:
"2. Counsel for the Petitioner points out that in the
rejoinder the Petitioner raised the point that the
impugned order No. 277/2002 dated 20th' August
2002 passed by Mr Dinesh Kacker, the Joint
Secretary (JS) to the Government of India, in the
Department of Revenue, was in fact not signed by
the said JS. He states that this fact can be verified
only if the original file (being F. No. 375/3
l/DBK/2001-RA.Cus) in which the order was passed
is produced before the Court."
4. On 30th May 2016, a final opportunity was granted to the Union of
India to produce the original file.
5. Today, Mr. Kamal Kant Jha, learned counsel for the Union of India
produced the original file. It contains a 'Draft Order' signed by Mr.
Dinesh Kakkar, the JS in question at the relevant time. However,
there is no date below the signature of Mr. Kakkar. The date
'20.8.2002' is written by hand on the left hand corner of the fitrst
page of the Draft Order. Also numerous corrections made in the Draft
Order have not been initialled by him.
6. What is important is that the impugned order, certified copy of
which has been issued to the Petitioner and which has been assailed in
the present petition, is present in the file but without the signature of
Mr. Kakkar. The end of the order only states "sd/-" with the name of
Mr. Dinesh Kakkar typed below. Below this to the left is the
attestation of Mr. BAV Srinivasan, Under Secretary (RA).
7. The fact of the matter, therefore, is that the original file does not
have the original of the impugned order signed by Mr. Kakkar.
8. It was urged by Mr. Kamal Kant Jha, on instructions from Mr.
Shaukat Ali, Under Secretary (RA), who is present in the Court, that
it is the practice followed consistently in the Department of Revenue
that only the draft orders are signed by the Adjudicating Authority
(„AA‟) and on that basis, certified copies of the final orders are issued
to the parties. Therefore the draft order is, for all practical purposes,
treated as the final order. According to Mr. Jha the word „draft‟ is a
mere appendage and it is in fact the final order.
9. The Court is unable to agree with the above submission. An AA
who makes corrections to a draft order is statutorily obliged to ensure
that he or she signs the final order and it is only thereafter that any
other officer attest a copy of the said order to be the true copy of the
original order. In other words, it is only after the final order in
original is signed by the AA that a certified copy thereof can be
issued to the parties.
10. If the practice in the Department of Revenue has been to the
contrary, it is high time that such practice ceases. It should be done
forthwith by issuing appropriate instructions.
11. As far as present case is concerned, the result is that there is no
valid order passed on the Petitioner‟s revision application till date.
The draft order dated 20th August 2002 which has no legal status,
cannot be held to be a valid order disposing of the Petitioner‟s
revision application. The said application has to be treated as still
pending adjudication and disposal.
12. Resultantly, a direction is issued to the incumbent Joint Secretary
in the Department of Revenue to adjudicate and finally dispose of the
Petitioner‟s revision application in accordance with law, within a
period of eight weeks from today, without in any manner being
influenced by the Draft Order earlier passed.
13. Since nearly 14 years have elapsed, the said Joint Secretary shall
afford the Petitioner an opportunity of being be heard prior to passing
a fresh order. The Joint Secretary will give the Petitioner at least a
week's advance notice of the date of hearing.
14. With the above directions the writ petition is disposed of.
S.MURALIDHAR, J
NAJMI WAZIRI, J
JULY 20, 2016
acm
