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Issues Involved:
1. Jurisdiction of the Court 2. Applicability of Transfer of Residence Rules, 1978 3. Rate of Duty Involved Detailed Analysis: 1. Jurisdiction of the Court: The learned Junior Departmental Representative raised a preliminary objection regarding the jurisdiction of the court, citing sub-section (3) of Section 129C of the Customs Act, 1962, which mandates that any appeal relating to the determination of any question having a relation to the rate of duty of customs must be heard by a Special Bench consisting of not less than three members. The court observed that it would be an exercise of irregular or assumption of jurisdiction if it decides the appeal, as the jurisdiction to decide such matters lies with a Special Bench. The court referred to various judgments, including those of the Privy Council and the Hon'ble High Courts, to emphasize that jurisdiction cannot be conferred by consent or acquiescence of the parties where there is an inherent lack of jurisdiction. 2. Applicability of Transfer of Residence Rules, 1978: The main contention of the appellant was whether he, as a surgeon, is entitled to the benefit of Transfer of Residence under the Transfer of Residence Rules, 1978. The relevant portion of these rules allows highly qualified professionals returning to India for permanent settlement after a minimum stay of two years abroad to import professional equipment free of duty up to a value of thirty thousand rupees. The court noted that if it concludes that the appellant is entitled to this benefit, the appellant would be exempt from duty. 3. Rate of Duty Involved: The court noted that the determination of whether the appellant is entitled to the benefit of the Transfer of Residence Rules, 1978, directly affects the rate of duty applicable. If the appellant is granted this benefit, the items would be exempted from duty; otherwise, the duty would be assessed at 100% + 20%. The court emphasized that the determination of the rate of duty falls under the jurisdiction of a Special Bench as per sub-section (3) of Section 129C of the Customs Act, 1962. The court cited previous judgments and orders, including those of the Special Bench and the Hon'ble President of the Customs, Excise, and Gold (Control) Appellate Tribunal, which consistently held that matters involving the rate of duty must be dealt with by a Special Bench. Conclusion: The court concluded that since the appeal involves the determination of a question related to the rate of duty, the jurisdiction to hear the appeal lies with the Special Bench. The Assistant Registrar was directed to transfer the file to the Special Bench, Customs, Excise, and Gold (Control) Appellate Tribunal, New Delhi.
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