Customs, Excise and Gold Tribunal - Mumbai
M/S. Consolidated Enterprises And Ram. ... vs Commissioner Of Customs (G), Mumbai on 4 January, 2001
Equivalent citations: 2001(137)ELT1223(TRI-MUMBAI)
ORDER J.H. Joglekar, Member (T)
1. The Commissioner of Customs (G), Mumbai passed order no. 258/99/CAC/CC/S.B. dated 21.6.1999 enhancing the value and the quantity of the goods imported by M/s. Consolidated Enterprises. The duties and interest were ordered to be charged accordingly. Penalty of rupees thirty-four lakhs was imposed on Ram B. Gangwani, proprietor of Consolidated Enterprises. Consolidated Enterprises and Ram Gangwani thereafter filed appeals before the Tribunal and also applications seeking interim reliefs and also waiver of pre-deposit on the penalty imposed. These applications were heard on several occasions starting from 1.12.1999. Shri Anil Balani, learned counsel appearing for both applicants, raised the preliminary point of jurisdiction. He submitted that the authority who adjudicated the case lacked jurisdiction.
2. The relevant observation of the adjudicating Commissioner in paragraph 13 of his order reads as under:-
3. As directed by us, the departmental representative produced the relevant order which is in fact made by the Chief Commissioner, bearing no. S/I-22(72)CCU/98 dated 10.12.1998. In this order the pendency of adjudication before eight Commissioners of Customs working under the Chief Commissioner has been enumerated. The orders of the Chief Commissioner were to transfer 65 cases pending a adjudication before the Commissioner of Customs (Adjudication), to four other Commissioner. 258 cases pending before the Commissioner of Customs (Nhava Sheva) were not disturbed. In other words, those cases remained pending before him.
4. The show cause notice culminating in the impugned order in paragraph 19 thereof requires cause to be shown in writing to the Commissioner of Customs (JNPT), Nhava Sheva. This show cause notice finds mention in the list annexed to the Chief Commissioner's note referred to above at sr.no. 29. The list shows "case transferred from CC (Adjudication) to CC (Preventive)".
5. Prima facie there appears to be an error in this list. At the material time this show cause notice was pending adjudication before Commissioner of Customs (JNPT) at Nhava Sheva and not Commissioner of Customs (Adjudication). Shri Choubey at this stage suggested that perhaps there was an earlier order of the Chief Commissioner initially transferring the adjudication from Commissioner of Custom (JNPT) Nhava Sheva to Commissioner of Customs (Adjudication), Mumbai and now the case was being further transferred to another Commissioner. he desired further time to secure that information from the Custom House. We do not accede to this request on two grounds; firstly that sufficient time had earlier been given for production of the relevant orders, and secondly that the note does not suggest any such possibility.
6. on perusal of the Chief Commissioner's note and annexure thereto, we find that the jurisdiction to adjudicate this case was not vested upon the Commissioner of Custom (Gen.), Mumbai.
7. Shri Choubey refers to notification 27/97-Cus. (N.T.) dated 7.7.1997 issued by the government. Thereby in terms of entry at sr.no. 1 the Commissioner of Customs at Mumbai has concurrent jurisdiction over JNPT. In fact the jurisdictions of the Commissioner at Sea Port, Airport and J.N. Port were concurrent for their total and combined jurisdiction. Shri Balani refers to a later notification such as 81/98-Cus. (N.T.) dated 26.10.1998. It is his submission that as per the later cited notification, although offence had taken place at Mumbai the show cause notice were answerable to Commissioner of Customs, new Delhi which jurisdiction was specifically transferred to three different Commissioner stationed respectively in Mumbai, Chennai and Nhava Sheva.
8. We have seen this notification. We do not think that the later notification clarified the earlier cited notification in any manner nor does it circumscribe the concurrent jurisdiction conferred upon the various Commissioners in Mumbai and Nhava Sheva.
9. In terms of the language of the show cause notice, a specific jurisdiction in shown to a particular officer subject to the jurisdictions spelt out in a notification issued under section 4 of the Customs Act, 1962. Although other commissioners are competent to exercise the same jurisdiction, once the jurisdiction is specified in the show cause notice it should not be altered except by an order utilizing the power derived from section 4. Shri Choubey made much of the language of the Chief Commissioner's order which showed that the order was issued at the instance of the Board. We do not find much substance in this submission because the Board does not have jurisdiction under section 4 but that the jurisdiction vests with the Central Government only. What is clear is that in terms of the show cause notice Commissioner of Custom, Nhava Sheva, was the designated authority. The list showing that the case was pending with the Commissioner of Customs (Adj.) was in error not capable of transferring jurisdiction.
10. Shri Balani was asked as to why in the face of this doubt the appellants had appeared before the Commissioner and had made their submission. Shri Balani submitted that the jurisdiction could not be transferred by consent. This is a raw.
11. Prima facie, therefore, we find that the Commissioner of Customs (Gen.) did not have jurisdiction to adjudicate the case. Consequently, the order passed by him does not sustain.
12. The preliminary objection raised by Shri Balani having been accepted by us. We allow these two appeals and remit the proceeding back to the Commissioner having the correct jurisdiction for re-adjudication. The appellants are directed to co-operate. The stay applications also stand disposed of.
13. (Dictated in Court)