Correct Appeal Forum Depends On Officer's Actual Rank, Not What An Order Mentions: Gujarat High Court

The Gujarat High Court on 15 April 2026 held that the appellate forum under the Customs Act, 1962 must be determined by the actual rank and statutory authority exercised by the adjudicating officer, and not by any incorrect or clerical mention in the order.

A Division Bench comprising Justices A.S. Supehia and Pranav Trivedi dismissed the Department's Tax Appeal and upheld the CESTAT's order, holding that the appeal was correctly filed before the Tribunal under Section 129A of the Customs Act, 1962. It stated:

“At this stage, we may mention and it is not denied by the respondent that under the provision of Section 129A of the Act, more particularly, the provision of Section 129A(1)(a) of the Act, a person who is aggrieved by an order or decision passed by the Principal Commissioner or Commissioner of Customs as an adjudicating authority has to file an appeal before the CESTAT. Thus, the order passed by Shri Ram Het Meena as a Commissioner of Customs, can only be challenged before the CESTAT under the provisions of Section 129A of the Act which the respondent did and accordingly, the CESTAT entertained the appeal.”

The dispute arose between the Commissioner of Customs, Kandla and Alka Petro Global Pvt. Ltd., after the Department challenged the CESTAT's decision that had entertained the company's appeal against an Order-in-Original dated 25 July 2023.

The Department argued that Shri Ram Het Meena passed the Order-in-Original while functioning as an Additional Commissioner. It contended that the proper appellate remedy lay before the Commissioner (Appeals) under Section 128A of the Customs Act, 1962, and not before the Tribunal.

The company countered that the Central Board of Indirect Taxes and Customs had already promoted Shri Meena to the post of Commissioner of Customs and Indirect Taxes by an Office Order dated 6 July 2023. It submitted that he assumed charge of the post on an in-situ basis and passed the order as Commissioner. On that basis, the company maintained that it correctly filed the appeal before the CESTAT under Section 129A(1)(a).

After examining the record, the High Court found that Shri Meena's promotion remained undisputed and that he had assumed charge as Commissioner before passing the Order-in-Original.

The Court held that Section 129A(1)(a) governs appeals against orders passed by a Commissioner acting as adjudicating authority, while Section 128A applies only when Deputy or Assistant Commissioners pass orders. It reiterated that the appellate forum depends on the nature of the authority exercising power, not on the label used in the order.

Rejecting the Department's reliance on the appeal indication mentioned in the Order-in-Original, the Bench held that jurisdiction cannot be altered by an incorrect reference in the order. It opined:

“.....mere mentioning of provision of Section 128A of the Act in the title of the Order-in-Original dated 25 July 2023 suggesting to file an appeal against the said order before the Commissioner of Customs (Appeals) Kandla would not ipso facto mean that such appeal has to be filed before the Commissioner of Customs (Appeals) only, by ignoring the provision of Section 129A of the Act and the order passed by the Commissioner.....”

The Court also noted that the Department did not object to the adjudicating officer's authority during the proceedings and raised the issue only after the CESTAT ruled against it. It upheld the Tribunal's rejection of the Rectification of Mistake application.

The judges held that the company correctly invoked Section 129A and filed the appeal before the CESTAT against an order passed by a Commissioner acting as adjudicating authority. They observed:

“.....the respondent had precisely challenged the Order in Original passed by the Commissioner before the CESTAT by resorting to provision of Section 129A of the Act by ignoring the caption of the Order-in-Original dated 25 July 2023 referring to the provision of Section 128A of the Act, to file an appeal against the Order-in-Original before the Commissioner of Customs (Appeals).....”

Accordingly, the High Court dismissed the Tax Appeal.

For Appellant: CB Gupta, Advocate 

For Respondent: Paritosh R Gupta