Customs, Excise and Gold Tribunal - Mumbai
National Transport Co. vs Commissioner Of Customs on 27 December, 2002
Equivalent citations: 2003(152)ELT373(TRI-MUMBAI)
ORDER Jyoti Balasundaram, Member (J)
1. After hearing both sides for some time on the applications for waiver of pre-deposit of penalties imposed upon the applicants by the Commissioner of Customs in the impugned order (as per details shown in the annexure to this order), we find it possible to hear and decide the appeals themselves, hence after waiving pre-deposits, we proceed to dispose of the appeals themselves with the consent of both sides.
2. By the impugned order, duty demand has been confirmed on M/s. Shree Venkateshwara Plastic Products and Shri P.V.B Chary on the grounds inter alia that watch modules imported by them were undervalued and further for the reason that they were not the actual users engaged in the manufacture of watches and did not possess any valid import licence for import of watch modules.
3. The Commissioner has ordered that customs duty to the extent not recovered from the above mentioned two persons should be recovered from National Transport Co., which is a customs house agent, treating it as the agent of the importer. Penalties have been imposed on other persons for acts of omission or commission, rendering the watch modules liable to confiscation.
4. It is the plea of Shri J.C. Patel, Counsel appearing for Suresh Sheth that while the show cause notice dated 25-4-97 was issued and was made answerable to the Commissioner of Customs, Air Cargo, Sahar, in respect of goods, which had been imported at Sahar, Air Cargo and allowed clearance on provisional assessment by Sahar Air Cargo Customs, the notice was adjudicated by the Commissioner of Customs (Adjudication), Mumbai who had no jurisdiction to do so, in the absence of a notification issued by the Central Government under Section 4 of the Customs Act, 1962 specifically authorising him to adjudicate the notice. In support of this submission he relied upon the Tribunal's order in the case of Consolidated Enterprises v. Commissioner of Customs (G), Mumbai, [2001 (137) E.L.T. 1223] which has been followed in the case of Auto Ignition Ltd. v. Commissioner of Customs, ACC, Mumbai [2002 (144) E.L.T. 631].
5. We find force in the above plea regarding lack of jurisdiction and note that this argument was also accepted in the case of Shri Minesh Shah and Mukesh Bakhai v. Commissioner of Customs (Order Nos. 4377-80/WZB/2002-C-I, dated 19-12-2002). We, therefore, set aside the impugned order and remand the case to the Commissioner of Customs having jurisdiction to adjudicate the show cause notice. We do not accede to the request of Shri Nankani, Id. Counsel for Kenny Sukhwani to treat his case on a different footing as Kenny Sukhwani does not reside in India but is a permanent resident of Hong Kong and that therefore the provisions of the Customs Act/ 1962 are not attracted against him, for the reason that his appeal also arises out of the common adjudication order which we have set aside. We also see that no merit in the plea raised by Shri Doiphode that the issue of jurisdiction may be referred to a Larger Bench, in the light of the Tribunal's order in the case of Archana Impex v. Commissioner of Customs, Mumbai, [2002 (145) E.L.T. 657], as we note that, when it was put to the appellant in that case that the Bench might not find it possible to agree with the view expressed in the case of M/s. Consolidated Enterprises, cited supra, all Counsels for appellants stated that they would not raise this issue of jurisdiction before the Commissioner at Ahmedabad to whom the matter was remanded by the Bench, and no view was expressed contrary to the view taken in the case of M/s. Consolidated Enterprises. Since there are no conflicting judgments on this issue of jurisdiction we decline the prayer made before us for reference to a Larger Bench.
6. In the result, the appeals are thus allowed by remand in so far as they relate to the present appellants.