2017 (2) TMI 84 - HC - Customs

Jurisdiction - whether the Commissioner is empowered to reject the request of the petitioner in violation of Rule 5 of the Customs Act, 1962? - whether the appellant, in fact, had to go before the Revisional authority but, by misconception, he went on appeal before the CESTAT and in parallel to that he has filed the writ petition, is correct? - smuggling of gold - principles of natural justice - Held that - The learned Single Judge has erred in directing the appellant herein to approach the CESTAT when the jurisdiction lies only with the Joint Secretary, who is the revisional authority. However, since there is non-compliance of principles of natural justice and even no roving enquiry was held in the matter, it would be better if the appellant approaches the Joint Secretary by filing a revision, if he is so advised. In such event, the revisional authority shall consider the matter afresh, after affording opportunity to the appellant - matter on remand - appeal disposed off.

Summary

Issues:
Challenge to order of confiscation and penalty under Customs Act, 1962; Rejection of request to cross-examine witnesses by Commissioner (Appeals-I); Jurisdiction of CESTAT; Misconception in approaching CESTAT instead of revisional authority; Compliance with principles of natural justice.

Analysis:
The appellant challenged the order of confiscation and penalty under section 112(a) of the Customs Act, 1962, passed by the Joint Commissioner of Customs. The Commissioner (Appeals-I) rejected the appellant's requests to cross-examine witnesses, leading to an appeal before the CESTAT and a parallel writ petition. The Tribunal dismissed the appeal citing jurisdictional issues. The appellant contended that the Commissioner's rejection violated Rule 5 of the Customs Act, 1962, and argued that he mistakenly approached the CESTAT instead of the revisional authority. The High Court noted that only a revision lies before the Joint Secretary as the revisional authority, but due to the misconception, the appellant went to the CESTAT, which also dismissed the appeal on jurisdictional grounds.

The High Court found that the learned Single Judge directed the appellant to approach the CESTAT, although the jurisdiction lay with the Joint Secretary as the revisional authority. Despite this error, the Court observed non-compliance with principles of natural justice and the lack of a roving enquiry. Consequently, the Court advised the appellant to file a revision before the Joint Secretary, who should consider the matter afresh, afford an opportunity to the appellant, and dispose of the case within three months from the judgment's receipt. The appellant was permitted to raise all contentions and request to cross-examine witnesses before the revisional authority. Thus, the direction of the Single Judge was modified, and the writ appeal was disposed of without costs, with connected miscellaneous petitions closed.