2019 (12) TMI 299 - HC - Customs

Jurisdiction - power to issue SCN - the petitioner had raised an issue of jurisdiction before the Commissioner of Customs (Import), Mumbai, who issued notice and thereafter, adjudicated on this matter - HELD THAT - The decisions of the Tribunal, namely COSMO FERRITES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH 2014 (12) TMI 116 - CESTAT NEW DELHI and SAMTEL COLOR LTD. VERSUS COLLECTOR OF CENTRAL EXCISE, MEERUT 2000 (4) TMI 112 - CEGAT, COURT NO. II, NEW DELHI , on the issue of jurisdiction, were clearly cited before the Commissioner of Customs (Import), Mumbai. In fact, there is reference to such decisions in the impugned order in original. However, without considering such decisions or the import of such decisions, the objection relating to the jurisdiction, has been disposed off, merely by observing that this is a case of mis-declaration and therefore, the authorities will have jurisdiction over the matter. Since, this is an issue, which goes to the root of the jurisdiction, it will not be appropriate to relegate the petitioner to alternate remedy. Besides, we find that there is virtually no consideration as such, of the objection as to the jurisdiction, in the present case. Matter remanded to the Commissioner of Customs (Import), Mumbai to re-consider the objection as to the jurisdiction, as raised by the petitioner - petition allowed by way of remand.

Summary

Issues: Challenge to order by Commissioner of Customs, Jurisdictional matter, Consideration of previous decisions

1. Challenge to Order by Commissioner of Customs:
The petitioner challenged the order made by the Commissioner of Customs (Import), Adjudication Cell, Mumbai dated 23.04.2019. The respondent argued that the petitioner had an alternate remedy of an Appeal before the Customs, Excise, Service Tax Tribunal, Mumbai (CESTAT), and therefore, the present Petition should not be entertained. The High Court heard both parties on the issue of alternate remedy and found that the impugned order did not adequately consider the issue of jurisdiction raised by the petitioner.

2. Jurisdictional Matter:
The petitioner raised an issue of jurisdiction before the Commissioner of Customs (Import), Mumbai, citing judgments of the CEGAT and CESTAT. The contention was that the Commissioner of Central Excise had jurisdiction to issue notice and institute proceedings in the matter. The High Court noted that the impugned order did not sufficiently consider the jurisdictional issue raised by the petitioner. The High Court found that the Commissioner of Customs (Import), Mumbai did not adequately address the previous decisions cited by the petitioner in their order.

3. Consideration of Previous Decisions:
The High Court observed that the impugned order did not properly consider the judgments of the Tribunal cited by the petitioner. The decisions of the CEGAT and CESTAT were noted in the impugned order but were not applied or considered in detail. The High Court emphasized that the issue of jurisdiction raised by the petitioner was crucial and should have been thoroughly examined by the Commissioner of Customs (Import), Mumbai. As a result, the High Court set aside the impugned order and remanded the matter to the Commissioner for re-consideration of the jurisdictional objection, directing them to specifically consider the previous decisions cited by the petitioner.

In conclusion, the High Court allowed the Petition, setting aside the impugned order and remanding the matter to the Commissioner of Customs (Import), Mumbai for a fresh consideration of the jurisdictional issue raised by the petitioner. The High Court emphasized the importance of properly considering previous decisions cited by the parties and directed the Commissioner to dispose of the matter expeditiously within six weeks of the parties filing the authenticated copy of the Order.