Customs, Excise and Gold Tribunal - Bangalore
Cc vs Guru Electronics Singapore (Pvt.) Ltd. on 30 January, 2004
Equivalent citations: 2004(94)ECC418, 2004(171)ELT215(TRI-BANG)
JUDGMENT K.C. Mamgain, Member (T)
1. This is an appeal filed by Revenue against the Order-in-Appeal No. 154/03 dated 21.4.2004 passed by the Commissioner of Customs (Appeals), Bangalore.
2. The officers of HQRs (Preventive), Customs Commissionerate, Bangalore acting on an intelligence intercepted a consignment on 27.9.2002, consigned to M/s Suntech, Bangalore at Air Cargo Complex Bangalore. The importer M/s Suntech, Bangalore had filed a Bill of Entry No. 365754 dated 27.9.2002 for clearance of 200 Nos. of Cooler fans and 20 Nos. of Mother boards. The consignment was examined in presence of concerned Custom House Agent and independent witnesses. On examination, it was revealed that the consignment contained excess quantity of not only the declared goods but also huge quantity of undeclared goods. The undeclared goods consisted of Intel Desktop Boards, SD RAMs -- Memory Cards of 128 MB and 256 MB. All these goods were seized under Mahazar dated 28.9.2002. The import documents indicated that the consignment was supplied by M/s Guru Electronics Singapore (Pte) Ltd. While the investigations were in progress, a letter was received from M/s Guru Electronics Singapore (Pte) Ltd., Singapore dated 17.10.2002 seeking for re-export of the consignment, despatched to M/s Suntech, Bangalore under Invoice No. 203289 dated 25.9.2002 and AWB No. MEC 09130287 dated 25.9.2002 on the ground that the shipment was wrongly despatched to M/s Suntech, Bangalore, due to oversight at their Singapore Warehouse. The Joint Commissioner of Customs (Preventive), Bangalore vide his letter C.No. VIII/48/456/2002 dated 7.11.2002 replied to M/s Guru Electronics Singapore (Pte) Ltd., Singapore stating that the request for re-export is rejected in view of the fact that the Bill of Entry had been filed based on the import documents and as such the title of ownership, rests with the importer. Their request for export was an after-thought as the same was made subsequent to the detention and seizure of the subject goods. The respondents filed appeal before the Commissioner of Customs (Appeals), Bangalore against this letter of Joint Commissioner of Customs (Preventive). The Commissioner (Appeals) allowed the appeal of respondents holding that the order of the Joint Commissioner rejecting the re-export of the goods is not a speaking order and no findings have been given as to why the appellants requests for re-export in terms of Section 23(2) of the Customs Act would not be considered.
3. Smt. Radha Arun appeared for hearing on behalf of the Revenue and Shri Ravi Shankar, Advocate appeared on behalf of the respondents.
4. Smt. Radha Arun pleaded that the Order-in-Appeal passed by Commissioner (Appeals) is a unilateral order which has been passed in gross violation of principles of natural justice inasmuch as the Department was not at all apprised of the appeal filed by the supplier, M/s Guru Electronics Singapore (Pte) Ltd., Singapore. The Commissioner (Appeals) has not given any specific reason or justification for not putting the Department on notice. Breach of natural justice itself is a miscarriage of the justice and as such an order passed in violation of the principles of natural justice will be void, as laid down in several judgments of the highest court of the land. Under the Customs Act, only the decisions or orders are alone appealable. Such decisions or order are made during the adjudication proceedings and the official communication, rejecting the request, signed by the head of investigation agency i.e. the Joint Commissioner of Customs (Preventive) cannot be considered as an adjudication order or decision and hence, entertaining any appeal under Section 128 of the Customs Act, 1962 is erroneous. The word 'decision' has been explained by the Hon'ble Supreme Court in the case of Province of Bombay v. Khushaldas S. Advani, AIR 1950 SC 222 at Page 229, as neutral expression with reference to purely executive act as well as judicial orders, and that since the Executive authority has to decide something, does not make the decision judicial. The term 'order' has the ordinary meaning, as a decision, involving adjudication and it needs to be a reasoned one. In the present case, the official communication is neither a decision nor an order passed by the Joint Commissioner of Customs (Preventive) as an adjudicating authority and as such the same could not have been a subject-matter of appeal before the Commissioner (Appeals) in terms of the provisions of Section 128 of the Customs Act, 1962. Normally, when an importer or his agent files a bill of entry in the port of import alongwith the relevant documents for clearance of goods through the Customs, series of steps or actions, in several phases or stages, is involved. Each of these stages is normally in the nature of an administrative, technical or executive action and the entire process may or may not involve adjudication. No formal order or decision was passed in the conventional sense and the communication to the supplier, by the Joint Commissioner of Customs (Preventive) was executive in character. The Commissioner (Appeals) has grossly erred in considering the provisions of Sub-section (2) of Section 23 of Customs Act, 1962, which relates to remission of duty on lost, destroyed or abandoned goods. There was neither loss nor destruction nor abandonment of the goods imported, and as such there is no justification at all for relying on the said provisions. The importer never gave up either the property or his right, with an intention of never claiming it again. Therefore, the reliance placed by the Commissioner of Customs (Appeals) on the judgment of Supreme Court in case of Union of India v. Sanipat Raj Dugar, 1993 (41) ECC 183 (SC) : 1992 (58) ELT 163 is inappropriate. When the seizure of undeclared goods was on 28.9.2002, the request for re-import on the plea of wrong shipment was made belatedly i.e. on 17.10.2002, which clearly indicates that the request which was nothing but an afterthought was being made solely with an intention of getting away from clutches of law. Commissioner (Appeals) failed to make enquiries to ascertain the factual position of the impugned goods. The adjudication proceedings under Section 122 of Customs Act, 1962, had already been initiated against the importer, M/s Suntech, Bangalore, in respect of the impugned goods, by issuance of notice under Section 124 ibid by the Commissioner of Customs, who is equal in rank to him. During the pendency of the decision in respect of the Show Cause Notice issued to the importer, the Ld. Commissioner (Appeals) did not have the jurisdiction to entertain the appeal itself, since it related to the same set of the goods which were under seizure. He has misunderstood the provisions, which gave him power to act, and failed to deal with the issue before him, judiciously and in the process committed a series of errors. The Commissioner of Customs (Appeals) has straight away come to a conclusion that the importer, M/s Suntech, Bangalore has confirmed, individually, that the consignment had been supplied by mistake, due to oversight at the Singapore Warehouse. There is no discussion in the said Order-in-Appeal, as to how the importer M/s Suntech, Bangalore was concerned in the appeal filed by the supplier M/s Guru Electronics, Singapore and as to what the submissions were made by the importer M/s Suntech, Bangalore during the appeal proceedings.
5. Smt. Radha Arun, relied upon the decision of the Supreme Court in the case of Commissioner of Customs, Kolkata v. Grand Prime Ltd., 2003 (88) ECC 231 (SC) : 2003 (155) ELT 417 (SC), wherein it was held in Para 8 that 'the Act does not contain any provision regarding re-export of goods. It gives power of confiscation of goods which are illegally imported and for various other reasons enumerated in Section 111 of the Act.' She also relied on the decision of the Supreme Court in the case of Commissioner of Customs v. Christine Ko, 2000 (120) ELT 49 (SC), wherein the Supreme Court has set aside the interim order passed by the Gujarat High Court, allowing re-export of the goods during pendency of the writ petition. She therefore pleaded that the show cause notice was issued to the concerned persons before the hearing of appeals before the Commissioner (Appeals), but this fact was not disclosed. Therefore, in view of the above submissions, the order of the Commissioner is contrary to the provisions of law and may be set aside.
6. Shri Ravi Shankar, Ld. Advocate took a preliminary objection that the Department in their appeal has mentioned that "the appellant M/s Guru Electronics had clearly mentioned that the said order (letter) of the Joint Commissioner dated 7.11.2002 had been received by them on 20.11.2002. However, the party's Advocate Shri Ravi Shankar while filing the said appeal by letter dated 27.1.2003 addressed to the Commissioner of Customs (Appeals), mentioned that the decision was received by the appellant on or about 27.11.2002, and since the last date for filing the appeal was 26.11.2002 (Sunday), the appeal was hence filed on the next day. In this regard, it was submitted that the party's advocate appears to have misrepresented the facts before the Commissioner of Customs (Appeals) inasmuch as the party's aforesaid letter dated 3.1.2003 clearly admits that they had received the order on 20.11.2002. Therefore, the time limitation for filing appeal expired on 19.1.2003." Shri Ravi Shankar objected to these facts mentioned in the appeal that he has mis-represented the fact before the Commissioner of Customs (Appeals) and requested that the order may be passed by the Tribunal for expunging these remarks in the appeal of the Revenue.
7. Shri Ravi Shankar on behalf of the respondents pleaded that Section 128 of the Customs Act provides that any person aggrieved by any decision or passed under the Customs Act by any officer of the rank lower than the Commissioner of Customs may appeal to the Commissioner (Appeals.) Since, in this case, the order of rejecting export of goods is a decision, therefore the appeal lies to the Commissioner (Appeals). He further pleaded that the appellate authority has rightly took the cognizance of the Supreme Court in the case of Union of India v. Sampath Raj Dugar, 1993 (41) ECC 183 (SC) : 1992 (58) ELT 163 (SC). He also relied on the following decisions:
1. Unisilk v. CC, 2001 (74) ECC 560 (Guj) : 2001 (134) ELT 40 (Guj)
2. Guru Ispat Ltd. v. CC, 2003 (151) ELT 384 (T) and pleaded that both these decisions have been upheld by the Supreme Court. He also relied on the Tribunal decision in the case of Siemens Public Communication Networks Ltd. v. CC, 2001 (75) ECC 163 (T) : 2001 (137) ELT 623 (T) and pleaded that the order of Commissioner is correct in allowing re-export of the goods. He also raised minor objections stating that in Form CA3 at Column 7, the answer to the question 'whether the decision or Order appealed against involves any question having a relation to rate of duty or to the value of goods for the purpose of assessment' is 'no', whereas in show cause notice issued by the Commissioner of Customs, value has been disputed.
8. We have carefully considered the submissions made by both sides. We find that while filing the appeal, the Department should take care that no unwanted words and written against any of the Advocates who was doing their legal duties on the instructions of their client.
9. We find that the Commissioner (Appeals) has not given any notice to the Department, despite the fact that he himself observed that the "Joint Commissioner of Customs, vide his letter No. VIII/48/456/2002-Cus.Prev. dated. 20.11.2002 rejected the request with the remark that the request has been made subsequent to the detention and seizure of the subject goods. I find that the order of the Joint Commissioner of Customs is not a speaking order." When the Commissioner (Appeals) himself find that the order of the Joint Commissioner is not a speaking order and the goods have been subjected to seizure, it is necessary for him to get correct facts from the Customs and give them an appropriate opportunity to know the status of the case before passing any order. We find that in the decisions of the Supreme Court relied upon by both the sides, adjudication proceedings were complete and thereafter only the parties have gone to the Court and the relief of re-export has been given on equity. In the present case, Section 110(2) of the Customs Act itself provides that when the goods are seized, notice under Section 124 is to be given to the concerned person, within six months from the date of seizure, otherwise the goods shall be returned to the person from whose possession these goods were seized. In this case, when the goods were under seizure and there was sufficient time before the Department for investigation issuing of the notice under Section 124 of the Customs Act and same was issued before the Order-in-Appeal was passed by Commissioner (Appeals), it was improper for the Commissioner (Appeals) to order for re-export of the goods, for which he had no powers. Section 23(2) of the Customs Act, provides that the owner of any imported goods may, at any time before an order for clearance of goods for home consumption under Section 47 or an order for permitting the deposit of goods in a warehouse under Section 60 has been made, relinquish his little to the goods and thereupon he shall not be liable to pay the duty thereon. In this case nobody has relinquished the title of the goods. Section 23(2) of the Customs Act does not permit re-export of the goods, but it only absolves the owner of the imported goods from the liability of the duty thereon when he relinquishes the title of the goods. Without going into other issues, we find that the order of the Commissioner (Appeals), is contrary to the provisions of law and it is set aside. The appeal of the Department is allowed. The Department is free to adjudicate the show cause notice issued by them regarding seizure of impugned goods according to the provision of law.