2017 (2) TMI 182 - HC - Customs

Jurisdiction - whether the Commissioner of Appeals holds the same rank as the Joint Secretary to GOI? - Held that - the Commissioner of Appeals and the Joint Secretary of the GOI, who exercised the power of the revisional authority, hold the same rank - the impugned order is set aside, with liberty to the GOI to pass a fresh order within a period of 8 weeks from the date of receipt of a copy of the order, after corrective measures are taken - petition disposed off.

Summary

Issues:
Jurisdictional flaw due to officer's rank in passing the impugned order.

Analysis:
The writ petition challenges an order passed by the Government of India (GOI) under Section 129 DD of the Customs Tax Act, 1962. The petitioner was initially directed to redeem gold bangles and bars with a fine and penalty. The petitioner appealed, resulting in a reduction of the redemption fine and penalty. Despite the Revenue not participating in the appeal, they later filed an appeal which was dismissed. Subsequently, the Revisional Authority directed absolute confiscation of the gold items and imposed a penalty. The petitioner contended that the officer who passed the impugned order did not have the jurisdiction as he held the same rank as the Commissioner of Appeals, whose decision was challenged. Citing a judgment from the Punjab and Haryana High Court, the petitioner argued that this constituted a jurisdictional flaw. The Supreme Court's dismissal of a Special Leave Petition further supported this argument.

The respondents acknowledged the Punjab and Haryana High Court's judgment and indicated that corrective measures were being considered to address the issue of revisional power being vested in an officer of the same rank as the Commissioner of Appeals. The High Court examined the relevant observations from the Punjab and Haryana High Court's judgment, emphasizing the impermissibility of orders being passed by officers of the same rank. Given that the Commissioner of Appeals and the Joint Secretary of the GOI held the same rank, the court upheld the petitioner's contention of a jurisdictional flaw.

Consequently, the High Court set aside the impugned order and granted the GOI eight weeks to issue a fresh order after implementing corrective measures. If corrective steps were not taken within the specified period, compliance with the Commissioner of Appeals' order was mandated. The writ petition was disposed of accordingly, with no costs imposed.