Madras High Court
M/S.Pan Asia Logistics India Pvt. vs The Joint Secretary (Revision ... on 8 September, 2021
W.P.No.12239 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.09.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.12239 of 2013
M/s.Pan Asia Logistics India Pvt., Ltd.,
Represented by its General Manager Mr.T.V.Sreedhar,
No.46 & 48, Ehrlich Lab Building,
2nd Floor, Masilamani Road, Balaji Nagar,
Royapettah, Chennai – 600 014. ..Petitioner
vs
1.The Joint Secretary (Revision Application),
Government of India,
Ministry of Finance, Department of Revenue,
14, Hudco Vishala Building, “B” Wing,
6th Floor,
Bhikaji Cama Place,
New Delhi – 110 066.
2.The Commissioner of Customs (Appeals),
Custom House,
No.60, Rajaji Salai,
Chennai – 600 001.
3.The Joint Commissioner of Customs (MCD)
Custom House, No.60, Rajaji Salai,
Chennai – 600 001.
1/13
https://www.mhc.tn.gov.in/judis/
W.P.No.12239 of 2013
4.The Commissioner of Customs (Imports)
Custom House,
No.60, Rajaji Salai,
Chennai – 600 001. ..Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari, calling for the records of the 1st
respondent culminating in the Order dated 13.02.2013 issued from File
No.373/45/SL/12-RA-Cus and quash the same.
For Petitioner : Mr.S.Murugappan
For Respondent : Mr.V.Sundareswaran
Senior Panel counsel
[For R1 to R4]
ORDER
The order dated 13.02.2013 passed by the First respondent / Revision
Authority is under challenge in the present writ petition.
2. The learned counsel for the petitioner raised a ground that the
impugned order has been passed by an incompetent authority as the Joint
Secretary (Review Application), Government of India, is equivalent to the
cadre of Commissioner of Central Excise and Customs, who is the Appellate
https://www.mhc.tn.gov.in/judis/
W.P.No.12239 of 2013
authority before whom, an order of revision is to be taken by way of an
appeal. Therefore, equal ranking officials cannot pass both the order of
revision and the order in appeal. It is possible that the very same Revisional
authority may be posted as Commissioner (Appeals) and in such
circumstances also, an anomaly will be created.
3. The learned counsel for the petitioner relied the decision of this
Court in the case of S.Moinuddin Vs. Joint Secretary, Government of
India, Ministry of Finance, New Delhi dated 24.01.2017 in W.P.No.16682
of 2016, where this Court has interfered with the order that had been
impugned therein in respect of similarly placed persons on that sole ground
and had directed the matter to be heard by an authority after taking
corrective measures in this regard.
4. It is admitted by the learned Senior Panel counsel that
subsequently, the Revisional authority has been reconstituted. Taking note
of the anomaly pointed out by this Court and after 2016, now the Principal
https://www.mhc.tn.gov.in/judis/
W.P.No.12239 of 2013
Commissioner of Central Excise and Customs is the Revisional authority
and exercising the powers conferred under the Act. Considering the said
ground, this Court also passed an order on 04.08.2021 in W.P.No.27392 of
2012 in the case of M/s.Hatsun Agro Products Limited, Vs. The Joint
Secretary to Government of India.
5. As far as the present writ petition is concerned, the learned counsel
for the petitioner raised the very same ground of incompetency of the
Revisional authority in exercise of power.
6. However, the learned Senior Panel counsel filed a typed set of
papers and contended that the copy of listing of subjects allocated to the
Department of Revenue in the Government of India, (Allocation of
Business) Rules, 1961 had not been produced before this Court, when the
earlier writ petitions were decided. Therefore, this writ petition is to be
considered with reference to the said rules issued as well as the delegation
of powers conferred by the Government of India.
https://www.mhc.tn.gov.in/judis/
W.P.No.12239 of 2013
7. Relying on the said Allocation of Business Rules 1961, the learned
Senior Panel counsel contended that Revision Application Unit is a separate
unit and the Revisional authorities are selected and posted to function as
Revisional authority. Therefore, Mr.D.P.Singh, though working in the cadre
of Joint Secretary, he was conferred with the powers of the Revisional
authority by way of selection and therefore, the question of considering the
equality in ranking would not arise at all. There are many number of
instances, where equal cadre officials are delegated with certain powers
under the Act for the purpose of dealing with the issues. Those powers of
delegations granted under the Allocation of Business Rules are no way
connected with the hierarchy of cadres and it is as such allocations and
powers are done based on selection by the Government of India. In the
present case, it is contended that Mr.D.P.Singh would have worked in the
cadre of Joint Secretary during the relevant point of time. However, he was
selected and posted as Revisional authority under the Allocation of Business
Rules, 1961 and therefore, the powers to be exercised by the Revisional
https://www.mhc.tn.gov.in/judis/
W.P.No.12239 of 2013
authority need not be compared with reference to the powers conferred on
the Appellate authority under the provisions of the Act.
8. This apart, the learned Senior Panel counsel reiterated that against
the order of the Revisional authority, the aggrieved person has got the right
of filing a writ petition before the High Court. He need not go before the
Commissioner (Appeals). Thus, the comparison would not cause any
infringement of right to the aggrieved person and therefore, such a ground
raised is untenable.
9. This Court is of the considered opinion that remanding of a matter
can never be an empty formality. The order of remand even by the Courts
sometimes may be an easy way out for the disposal of cases. However, the
Courts are expected to decide the issues on merits in all circumstances and
only on exceptional circumstances, where such an adjudication cannot be
done by the Courts under Article 226 of the Constitution of India, then
alone, the matters are to be remanded back for fresh adjudication. In fact,
https://www.mhc.tn.gov.in/judis/
W.P.No.12239 of 2013
the disputed facts are to be adjudicated with reference to the documents and
evidences to be considered. Thus, in such circumstances, the High Court has
no option, but to remand the matter back to the authorities for fresh
adjudication on merits. Even under the Code of Civil Procedure, remand of
suits are restricted only if the trial Courts disposed of the suit on the ground
of maintainability under Order 43 Rule 1. Therefore, remand is only an
exception, wherein an exceptional circumstances are to be established by the
petitioners.
10. In the present case, the learned counsel for the petitioner states
that the petitioner would be getting an opportunity to re-adjudicate the
issues on merits before the competent authority now appointed i.e., the
Principal Commissioner of Central Excise and Customs.
11. Per contra, the learned Senior Panel counsel opposed by stating
that the issues were already decided by the Court and no more res integra.
However, the petitioner states that they have got a distinguishable point on
https://www.mhc.tn.gov.in/judis/
W.P.No.12239 of 2013
merits and thus, an opportunity is required to establish their case.
12. As far as the point of competency raised, this Court is of the
considered opinion that as rightly pointed out, the Revisional authorities are
posted to administer the “Revision Application Unit”. The Revision
Application Unit is a separate wing of the Board and officials are posted to
deal with the Revision Applications alone. Therefore, the powers to be
exercised by the Revisional authorities need not be compared with reference
to the powers exercised by the Commissioner of Central Excise and
Customs (Appeals), in view of the fact that against the order passed by the
revisional authority, no appeal lies before the Commissioner of Central
Excise and Customs (Appeals) and only a writ petition lies before the High
Court under Article 226 of the Constitution of India.
13. In such circumstances, the petitioner cannot be construed as an
aggrieved person and only in the event of establishing a right or grievance,
the writ petition is to be entertained. In the absence of establishing any such
https://www.mhc.tn.gov.in/judis/
W.P.No.12239 of 2013
right or its infringement, then the Allocation of Business Rules by the
Government of India need not be found faulted.
14. Such jurisdictional point if raised by any person, is to be
considered with reference to the grievances and the implications involved.
In the event of such adjudication by such incompetent authority, if there is
no violation of infringement of right, then the Courts need not go into the
Allocation of Business Rules. Undoubtedly, if any such Allocation of
Business is in violation of the provisions of the Act or Rules, then it is to be
struck down. However, merely by comparison of cadres, inference is not
called for.
15. This being the principles to be followed, while considering the
preliminary issue of incompetency of an authority, based on the judgment
rendered by the High Court of Punjab & Haryana, the Department has re-
allocated the powers of the Revisional authority on the Principal
Commissioner of Central Excise and Customs.
https://www.mhc.tn.gov.in/judis/
W.P.No.12239 of 2013
16. It is brought to the notice of this Court that as of now, and right
from the year 2016, the Principal Commissioner of Central Excise and
Customs is exercising the powers of the Revisional authority and the
Rulings of the Punjab & Haryana High Court had been accepted and
implemented by the Department.
17. This being the status as of now, the petitioner need not be
deprived of an opportunity of fresh adjudication on the hands of the
Principal Commissioner of Central Excise and Customs. In view of the facts
and circumstances, the impugned order passed by the first respondent in
proceedings dated 13.02.2013 in File No.373/45/SL/12-RA-Cus is quashed
and the matter is remitted back to the present Revisional Authority i.e., the
Principal Commissioner of Central Excise and Customs under Section 129
DD of the Act for fresh consideration of the matter. It shall be incumbent
upon the Revisional Authority, after affording full opportunity of hearing to
the petitioner, deal with each of the contentions raised and pass reasoned
https://www.mhc.tn.gov.in/judis/
W.P.No.12239 of 2013
orders on merits and in accordance with law, inhibited and uninfluenced by
the impugned order, which has been set aside.
18. With these observations, the writ petition stands allowed. No
costs.
08.09.2021
Kak
Internet:Yes/No
Index:Yes/No
Speaking / Non-Speaking order
To
1.The Joint Secretary (Revision Application),
Government of India,
Ministry of Finance, Department of Revenue,
14, Hudco Vishala Building, “B” Wing,
6th Floor,
Bhikaji Cama Place,
New Delhi – 110 066.
https://www.mhc.tn.gov.in/judis/
W.P.No.12239 of 2013
2.The Commissioner of Customs (Appeals),
Custom House,
No.60, Rajaji Salai,
Chennai – 600 001.
3.The Joint Commissioner of Customs (MCD)
Custom House, No.60, Rajaji Salai,
Chennai – 600 001.
4.The Commissioner of Customs (Imports)
Custom House,
No.60, Rajaji Salai,
Chennai – 600 001.
https://www.mhc.tn.gov.in/judis/
W.P.No.12239 of 2013
S.M.SUBRAMANIAM, J.
Kak
W.P.No.12239 of 2013
08.09.2021
https://www.mhc.tn.gov.in/judis/
