Customs, Excise and Gold Tribunal - Bangalore
Macnair Export (P) Ltd. vs Commissioner Of Customs, Cochin on 14 February, 2002
Equivalent citations: 2002(142)ELT593(TRI-BANG)
ORDER G.A. Brahma Deva, Member (J)
1. This appeal arises out of and is directed against the order-in-appeal dated 28-11-95, passed by the Collector of Customs (Appeals), Cochin.
2. Shri Doipode, Id. Adv. appearing for the appellant at the outset submitted that the order passed by the lower authorities suffers from want of jurisdiction inasmuch as show cause notice has not been issued by proper officer. He said that in the present case the goods were imported at Cochin port, whereas the show cause notice had been issued by the Asst. Collector, Bombay. The Asst. Collector, Bombay was not competent to issue show cause notice since the goods were imported at Cochin. He said that the proper officer must be an officer who must be functioning within the jurisdictional Col-lectorate where the import in question has been effected. Precisely this was the view taken by the Hon'ble High Court of Karnataka in the case of Devilog Systems India, reported in 1995 (76) E.L.T. 520 (Kar.). In this context he drew our attention to Para 7 of the said decision, which reads as under :
7. Be that as it may, even in the light of the aforesaid notification all that can be gathered is that instead of the Assistant Collector of Customs now even the Principal Appraisers could act as proper officers. But, still, the moot question remains whether he could be the proper officer for the concerned imports regarding which action has to be taken for non-levy and short-levy under Section 28(1) of the Act. So far as that question is concerned the answer is supplied by the section itself. A close look at the section shows that for a proper action under Section 28(1) the concerned officer must be in a position to find out whether there was non-levy, short-levy or erroneous refund. While issuing such notice the proper officer must be in a position to compute the extent of short-levy, non-levy or erroneous refund and that amount has to be specified in the notice. Therefore, he must be an officer who must have jurisdiction to compute the amount because the moment the amount is mentioned in the notice in the ultimate adjudication proceedings the concerned Collector should determine the amount due from such person but it should not be in excess of the amount specified in the notice meaning thereby the amount so mentioned in the notice acts as a ceiling beyond which even the adjudicating officer cannot (sic) while fixing the liability. It, therefore, stands to reason that proper officer must be an officer who must be functioning within the jurisdictional Collectorate where the import in question lias been effected. Otherwise an anomalous situation would follow. The submission of learned Counsel for the department is that any officer up to the rank of Principal Appraiser stationed anywhere in India can issue notice under Section 28(1) of the Act to any importer who may have imported articles attracting customs duty in any part of India. Accordingly even if such imports are made at Indira Gandhi Airport, New Delhi, notice can be issued by the Customs Officer at Madras. This is a little too far-fetched. It would in fact affect the very scheme of the Act. It cannot be forgotten that the object of issuing notice under Section 28(1) is to ensure that any evasion in the payment of customs duty is made good by the importer concerned- It is impossible and impractical to assume that an officer at Madras could effectively reckon the non-levy, short-levy or erroneous refund in respect of any import made at New Delhi. Therefore, the extreme contention canvassed by learned Counsel for the Revenue that any officer at Madras could issue such notices to any importer in any part of India and the jurisdictional Collector would be bound by such notice and he has to act on it, cannot be appreciated. Therefore, the notification issued on 14th May, 1963 will have to be held to mean that authorised officers working under the jurisdictional collectorate within whose jurisdiction the goods are imported can issue such notice and it is not necessary that only the Assistant Collector of Customs should issue such notice.
3. Smt. Rndha Arun, appearing for the Revenue submitted that the issue with reference to the jurisdiction has not been raised by the party before the Commissioner (Appeals) in particular. It was duly answered by appellant's Counsel that this point has been very much taken by the party before the Addl. Commissioner as well as before the Commissioner (Appeals) as can be seen from the respective orders. Further he said nevertheless this issue being a point of law, that can be raised at any stage since jurisdiction goes to the root of the matter and that can be raised at any stage of the proceedings.
4. We have carefully considered the matter. Without going into merits and demerits of the case, we find that strong force in the arguments advanced on behalf of the assessee with reference to the point of jurisdiction. The Counsel is correct in pointing out that the issue of jurisdiction can be raised at any stage. Furthermore we find that this point has been specifically taken by the party before the authorities below. No finding is forthcoming by the authorities below on the point of jurisdiction, Since the imports had taken place at Cochin port, it was for the proper officer at Cochin to issue show cause notice. In the case referred to above, the Karnataka High Court clearly held that "It therefore, stands to reason that proper officer must be an officer functioning within the jurisdictional Collectorate where the import in question has been effected. Otherwise an anomalous situation would follow." In the facts and circumstances, and in view of the ratio of the decision of the High Court of Karnataka, we hold that Asst. Collector, Bombay was not proper officer to issue show cause notice. In view of this settled position, the impugned order is liable to be set aside. Accordingly we do so. In the result, the appeals are allowed.