Calcutta High Court
Commissioner Of Customs vs Vinod Kumar Shaw & Anr on 14 December, 2010
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
CUSTA No. 12 of 2003
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction
ORIGINAL SIDE
COMMISSIONER OF CUSTOMS
Versus
VINOD KUMAR SHAW & ANR.
BEFORE:
The Hon'ble JUSTICE KALYAN JYOTI SENGUPTA
The Hon'ble JUSTICE KANCHAN CHAKRABORTY
Date : 14th December, 2010.
The Court : This appeal arises out of a reference
made by the learned Customs, Excise & Service Appellate Tribunal
(hereinafter referred to as "the said Tribunal") at the instance
of the High Court on the following questions:
(i) Whether the learned Tribunal had
jurisdiction to entertain, try and determine
the appeal nos.C-121 and C-132 of 2002 and
pass the order no.M/1253/Kol/02 dated 18th
December 2002 when the order passed by the
Commissioner (Appeals) under section 128A of
2
the Customs Act, 1962 appealed against
before the Tribunal related to seized
currency recovered from the respondents from
their baggage which was barred by proviso
(a) under section 128A of the Customs Act, 1962?
(ii) Whether the proper forum for challenging the order passed by the Commissioner of Customs (Appeals) under section 128A of the Customs Act, 1962 dated 8th November 2001 was by way of an application for revision to the Central Government under section 129DD of the Customs Act 1962 since the concerned goods were an item of baggage and the CEGAT had no jurisdiction to entertain an appeal in this regard under the first proviso to section 129A of the said Act?
By consolidating the two points, it emerges only one legal point, namely the question of jurisdiction- whether the learned Tribunal was competent to entertain the appeal against the Commissioner of Customs under section 129A or not?
It is the contention of the appellant that by virtue of proviso to section 129A, the appeal would not have been entertained by the said Tribunal, consequently the judgment 3 rendered by it on earlier occasion is nullity. We therefore set out the proviso to section 129A so far as it relates to this matter:
"Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause
(b) if such order relates to,-
(a) any goods imported or exported as baggage;
(b) any goods loaded in a conveyance for importation into India, but which are not unloaded at their place of destination in India, or so much of the quantity of such goods as has not been unloaded at any such destination if goods unloaded at such destination are short of the quantity required to be unloaded at that destination;
(c) payment of drawback as provided in Chapter X, and the rules made thereunder; ...."
Before we record the respective contention of the learned counsel, we set out the short fact in this case.
Two passengers, one sri Vinod Kumar Shaw and one Sri Ram Ratan Shaw were intercepted at the departure hal of Netaji Subhas Chandra Bose International Airport at Kolkata (then Calcutta) when they reported for their onward journey by Druk Airlines flight no.KB-106 on August 22, 1999. On search of their baggage, Indian 4 currency of denomination of Rs.500/- amounting to Rs.2,50,000/- were recovered from Sri Ram Ratan Shaw and Rs.7,50,000/- were seized from Sri Vinod Kumar Shaw as those were attempted to be illegally exported outside India, rendering them liable for confiscation. Necessary notice to show cause was issued and adjudication proceedings followed. The Joint Commissioner of Customs, the adjudicating authority, by his order dated June 23, 2000 ordered release of the seized currencies and no personal penalty was imposed on the said two persons.
Being aggrieved by the said order of adjudication, an appeal was preferred under section 129D of the Customs Act, 1962.
The appeal was allowed and the order of the adjudicating officer was set aside by the order dated December 12, 2001.
On receipt of the copy of the said judgment and as per the guidance therein, the respondents before us preferred an appeal before the said Tribunal. The learned Tribunal, on hearing the appeal, modified the order of the appellate auhtority by reversing the decision of confiscation, but imposing redemption fine to the extent of Rs.1,50,000/- and Rs.50,000/- respectively. The revenue contested the said appeal but did not raise any question of jurisdiction.
Thereafter a miscellaneous application was made for rectifying the mistake on the plea as mentioned above. 5
We have seen the ground in the miscellaneous application for rectification that the appellant attempted to export the goods as baggage. The learned Tribunal heard the matter and held that the said goods which were seized were Indian currency notes and not baggage. According to the learned Tribunal, baggage is separately described in the definition of goods and it has got no correlation with baggage.
Smt. Shampa Sarkar, learned Advocate, while supporting this appeal contends that if the definition of baggage and goods are read conjointly, it would appear that baggage includes the currency notes. Therefore, when admittedly currency notes were seized, it shall be treated that the baggage had been seized. Hence, proviso to section 129A has got full application. Accordingly, the learned Tribunal lacks inherent jurisdiction as the language of the proviso is mandatory in nature.
Mr. Mukherjee appearing for the respondents submits that proviso to section 129A is applicable in respect of certain situation namely, clause (a) any goods imported or exported as baggage. Here, definition of goods as mentioned in section 2(22)(d) of the Act says that "currency and negotiable instruments". It is not the case in the miscellaneous application that currency should be treated to be goods, rather it is said the baggage should be treated as goods. Moreover, the currency and baggage are two different items as the legislature has consciously 6 provided for the same and it will also appear so from section 78 read with Tariff contained in Chapter 98. There are methods of valuation of various items but there is no method of valuation of the currncy notes. Even going by the word "baggage", this case is not covered by the said definition.
Having heard the respective contentions, the point which has fallen for consideration in this matter is whether the learned Tribunal was competent to entertain, hear and decide the appeal under section 198A when the currency notes were seized and on the ground that the said currency notes were in baggage.
Therefore, we set out the definition of goods as contained in section 2(22)(d) of the Act as being "currency and negotiable instruments".
From a plain reading of the said section, it appears that the goods include varieties of items. Currency and negotiable instrument are two of the items and baggage is another separate item. Therefore, if any of the items is sought to be exported, then the application of the said proviso is possible. No doubt, here the question of jurisdiciton is relatable to the question of fact. Factually in the miscellaneous application, it is mentioned that the baggage contained currency. According to us, the baggage and currency are different and when we read the definition of baggage separately, it would appear that the baggage includes unaccompanied baggage but does not include motor 7 vehicles. Here, this baggage is completely different from the currency notes. Therefore, the learned Tribunal has not decided wrongly that baggage can be synonymous with the currency notes though Smt. Sarkar wants to persuade in other way. When the case proceeds on the basis of baggage it has to be understood whether the subject matter was baggage or not. The subject matter was Indian currency.
We therefore uphold the decision of the learned Tribunal and accordingly answer the questions referred to in the manner as follows:
(1) Question no.1 : In the affirmative.
(2) Question No.2 : In the negative.
In view of the above decision, we direct the department concerned to implement the order of the learned Tribunal passed earlier as to what amount shall be released after deducting the amount of redemption fine and penalty.
The appeal is disposed of accordingly. There will be no order as to costs.
(KALYAN JYOTI SENGUPTA, J.) (KANCHAN CHAKRABORTY, J.) tk