Page 182 - ELT_1st July 2020_Vol 373_Part 1

92 EXCISE LAW TIMES [ Vol. 373

39. In this context, the Judgment cited by the Learned Counsel for the
respondent in the matter of Commissioner of Central Excise (Exports) (cited
above} by a Coordinate Bench of this Court, would not help the case of the re-
spondent/licensee, as in that case the Division Bench has made it clear that grant
of licence is an administrative action and the rejection of an application for re-
newal is also an administrative action.
40. Here in the case in hand, the order passed under Regulation 22(7) is
only based on adjudication and a detailed procedure has been contemplated un-
der Regulation 22 as to how such adjudication has to be conducted and final or-
der to be passed. Therefore whatever order passed under Regulation 22(7) can
only be construed as an adjudicative order and not as an administrative order.
41. If such kind of adjudicative orders are passed, certainly those or-
ders can be very well fit in the situation mentioned under Section 129A of the
Customs Act, where 129A(1)(a) to (d) made it clear that, some specific orders as
well as order passed by adjudicating authority are appealable to the CESTAT.
42. Therefore the present order passed under Regulation 22(7), since
being an order passed by the adjudicating authority, can be categorized under
Section 129A(1)(a) of the Act, thereby the said order, in our considered opinion,
can very well be appealed by an aggrieved party.
43. In support of this view, we would like to quote a decision of the
Karnataka High Court, which in fact was authored by one of us (Dr. Vineet
Kothari, J). For the sake of ready reference, we quote the relevant paras of the
said Judgment of the Karnataka High Court in the matter of Cargomar v. Union of
India, Ministry of Finance and Ors., [MANU/KA/0473/2018]
“18. The contention raised by the Learned Counsel for the petitioner that
Regulation 21 provides for an appeal to the Customs Broker only in the lim-
ited contingency of suspension and cancellation of licence and not under
any other contingencies based on the reading of Section 146(2)(g) of the Act
is rather misconceived and does not deserve to be accepted. The power to
frame Rules given to the Board in the various fields enumerated in Clauses
(a) to (g) of sub-section (2) of Section 146 of the Act are not restrictive in any
manner, but they provide for different fields for which Regulations can
provide for. Unless the Regulation 21 quoted above itself was couched in a
narrow and limited terms to provide for an appeal only against the suspen-
sion and cancellation of licence, the State could have said so, but Regulation
21 on the other hand is couched in wider terms and it stipulates that a Cus-
toms Broker may prefer an appeal under Section 129A of the Act if he is ag-
grieved by any order passed by the Commissioner of Customs.
19. The word “any order” in Section 129A of the Act would undoubtedly
cover an order passed under Regulation 23 as well, more over, Section 129A
of the Act, the parent provision from which the right to appeal flows to the
aggrieved person does not have any such restrictive terms incorporated in
the said provision. It says that a decision or order passed by the Principal
Commissioner of Customs as an ‘adjudicating authority’ shall be appeala-
ble. There is no doubt that the order passed under Regulation 23 by the
Principal Commissioner of Customs is also an order passed by him as an
‘adjudicating authority’. What is adjudicated and what is imposed in the
order under the Regulations does not de-limit the scope of the appellate
provisions but it is important only for deciding the consequence flowing
from such orders.
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