Customs, Excise and Gold Tribunal - Delhi
Bliss Impex Corporation vs Collector Of Customs on 21 July, 1988
Equivalent citations: 1988(18)ECR643(TRI.-DELHI), 1988(37)ELT272(TRI-DEL)
ORDER D.C. Mandal, Member (T)
1. By appeal No. C/385/88-D the appellants have challenged the Order-in-original No. AP/INT/22/86-Cus., dated 29.9.1987 passed by the Collector of Customs, Cochin in which he has demanded duty of Rs. 6,62,023.60 on the imported white Cardboard which was cleared duty-free under Notification No. 117/78-Cus., dated 9-6-1978. the Collector has also held that the appellants were guilty of mis-declaration in the shipping bills relating to export of frozen shrimps which were liable to confiscation under Section 113 of the Customs Act, 1962 and since the goods were not available for confiscation, he has imposed a penalty of Rs. 50,000/- on the appellants under Section 112 of the Customs Act. The charge against the appellants was that they imported two consignments of White Cardboard through Madras Port free of duty in terms of the above notification against Advance Licence. According to the terms of the Advance Licence, the appellants were to export 2,50,000 Kgs. of frozen shrimps packed in 12,500 master cartons/packing materials weighing 40.9 M. Tons for an F.O.B. value of Rs. 1 Crore to foreign countries within six months from the date of import of the first consignment. The White Cardboard was imported by the appellants under bills of entry No. 3338 and 3339 dated 15.11.1984. According to the condition of the said notification the appellants were required to utilise the goods only for the purpose for which the goods were imported and they were not to dispose of the imported Cardboard without the prior approval of the concerned authorities. It was alleged that the appellants sold the imported Cardboard and exported frozen shrimps packed in cartons made from the indigenous Cardboard. Show Cause Notice was issued by the Assistant Collector of Customs, Cochin on 30-6-1986 asking the appellants to show cause to the Collector of Customs, Cochin. The appellants challenged the jurisdiction of the Collector of Customs, Cochin to adjudicate the matter in the High Court of Kerala by O.P. No. 3552/87-W. High Court disposed of the said Original Petition with a direction that Collector of Customs, Cochin should decide the question of jurisdiction raised by the appellants as aforesaid. In his Order-in-Original No. AP/INT/22/86-Cus., dated 2-7-1987, the Collector of Customs, Cochin held that he had the jurisdiction to adjudicate the cases although the White Cardboard was imported through Madras Port free of duty in terms of exemption notification against advance licence. Appeal No. CD/SB/3033/87-D has been filed by the appellants against the said Order-in-original dated 2-7-1987 challenging the Collector's decision regarding jurisdiction.
2. Appeal No. C/2974/87-D challenges Order-in-original No. AP/INT/17/86-Cus., dated 12.6.1987 passed by the Collector of Customs, Cochin in which he has confirmed the demand for customs duty amounting to Rs. 8,79,516.60 on imported White Cardboard. He has also held that the appellants exported the goods by mis-declaring the packing materials in the shipping bills which made the goods liable to confiscation under Section 113(1) of the Customs Act, 1962 and since the goods were not available for confiscation, he imposed penalty of Rs. 50.000/- on the appellants M/s. Pooppally Foods, Alleppey under Section 114 of the Customs Act. In this case, the appellants imported 49.2 M, Tons of White Cardboard, 31.5 M. Tons of Kraft paper and 4.5 M. Tons of Polythene Moulding powder free of duty under Notification No. 117/78-Cus., dated 9-6-1978, as amended, against advance licence. These goods were imported through Madras Port. White Cardboard was imported under Bills of Entry No. 287/84 and 288/84 dated 20-1-1984. The appellants were required to export frozen shrimps, froglegs, cuttle fish and other marine products packed in packing materials made of white Cardboard, kraft paper and polythene moulding powder for F.O.B. value of Rs. 1.5 crore. It was alleged that the appellants did not use the imported materials for packing frozen macine products exported through Cochin Port, but mis-declared the packing materials to have been made out of the imported materials. A show cause notice was issued by the Assistant Collector of Customs, Cochin on 30.1.1986 asking the appellants to show cause before the Collector of Customs, Cochin, which resulted in the aforesaid Order-in-original passed by the Collector.
3. By the impugned order No. AP/INT/7/86-Cus, dated 8-12-1986, the Collector of Customs, Cochin directed the appellants M/s. Kerala Food Packers to pay duty of Rs. 6,16,575.07 on White Cardboard imported free of import duty under Notification No. 117/78, dated 9-6-1978 against advance licence through the Port of Madras. He has also held that the appellants mis-declared the packing materials in the shipping bills in respect of the export of frozen shrimps through Cochin Port to get the export obligation discharged and to evade payment of import duty on White Cardboard and thus, they were guilty of mis-declaration which made the goods liable to confiscation under Section 113(i) of Customs Act and since the goods were not available for confiscation, he imposed personal penalty of Rs. 60.000/- under Section 114 ibid on the appellants. The White Cardboard was imported under Bill of Entry No. 2301 dated 17-4-1985. Show Cause Notice alleging contravention of the conditions (d) and (e) of Notifiction No. 117/78-Cus., dated 9.6.1978 and proposing action as indicated above was issued by the Assistant Collector of Customs, Cochin on 30.6.1986 asking the appellants to show cause to the Collector of Customs, Cochin.
4. We have heard Shri A.K. Jain for the appellants and Shri L.C. Chakraborty for the respondent. Shri Jain has argued that the goods in these cases were imported through Madras Port free of duty under Notification No. 117/78-Cus., dated 9-6-1978. The proceedings were initiated in Cochin Custom House through which frozen marine products were exported and the cases were adjudicated by the Collector of Customs, Cochin. He has argued that the Collector of Customs, Cochin had no jurisdiction to adjudicate these cases, demand duty on the imported materials and impose penalty on the appellants. In support of his arguments, Shri Jain has relied on this Tribunal's earlier decision reported in 1988 (14)-ECR-169 (Tribunal) in the case of Metro Exports v. Collector of Customs, Cochin (decided on 22-12-1987). In the said case, the goods were imported duty-free under the same notification against an advance licence as in the present case. The proceedings against the Importer were initiated by Cochin Customs House and the case was decided by the Collector of Customs, Cochin demanding duty on the imported goods and imposing penalty on the Importer. This Tribunal, after detailed examination of the matter, held that the Collector of Customs, Cochin had no jurisdiction to decide the said case as the import of the duty-free goods was through Madras Custom House. The aforesaid decision was followed by the Tribunal in (i) Orders No. 48-49/1988-D dated 18.1.1988 in Appeals No. C/3071/87-D and C/815/1987-D in the cases of M/s. Relish Foods (Pvt.) Ltd. and Mis. Kerala Export Pvt. Ltd., (ii) in Order No. 369/1988-D, dated 19.5.1988 in Appeal No. C/A No. 3051/1987-D in the case of M.K. Fisheries and (iii) in Order No. 451/1988-D, dated 7-7-1988 in Appeal No. C/3052/1987-D in the case of Costa Foods, Cochin v. Collector of Customs, Cochin. Shri Jain has also relied on the decision of East Regional Bench of this Tribunal in the case of Ram Narain Bishwa Nath v. Collector of Customs, Calcutta reported in 1988 (34) ELT 202 (Tribunal) in which a similar view regarding jurisdiction was taken. Shri Jain has further argued that show cause notice in the cases under appeals were issued by the Assistant Collector of Customs, Cochin after 27.12.1985 invoking longer time-limit of 5 years. Show Cause Notice demanding duty invoking longer time-limit of 5 years could be issued only by the Collector after amendment of Section 28 of the Customs Act w.e.f. 27.12.1985. He has argued that show cause notices having been issued by the Assistant Collector of Customs instead of by Collector of Customs, the proceedings initiated by those show cause notices are not sustainable In law. In support of this argument, Shri Jain has relied on the decision of Division Bench of Gujarat High Court reported in 1988 (34) ELT 442 in the case of Gujarat State Fertilizer Co. Ltd. and Anr. v. Union of India and Ors..
5. Shri Chakraborty, appearing for the Respondent-Collector, has reiterated the reasons given by the Collector of Customs, Cochin in the impugned orders.
8. We have considered the records of the cases before us and the arguments of both sides. On the question of jurisdiction of the Collector of Customs, Cochin these cases are squarely covered by the earlier decisions of this Tribunal relied upon by the learned Advocate for the appellants. We do not find any reason to take a different view. Following the earlier decisions cited in paragraph 4 (supra), we hold that the Collector of Customs, Cochin had no jurisdiction to adjudicate these cases, demand duty and Impose penalty. On this ground of jurisdiction itself, we set aside the impugned orders and allow the appeals.
7. As we have allowed the appeals on the question of jurisdiction, we do not consider it necessary to discuss other points raised by the learned Advocate before us during the hearing and also the points raised by the appellants in the appeal memorandum.