2000 (7) TMI 102 - CGOVT - Customs

Summary

Issues Involved:
1. Jurisdiction of the Revisionary Authority.
2. Validity of subsequent declaration under Section 77 of the Customs Act, 1962.
3. Correctness of the duty determined by the appellate authority.

Detailed Analysis:

1. Jurisdiction of the Revisionary Authority:
The Revision Application was filed by the Commissioner of Customs against the appellate order. The respondent argued that the Revision Application was not maintainable due to lack of jurisdiction, citing the case of Shri V.P. Hameed v. CC, Mumbai. The government reviewed the sequence of events and determined that the Assistant Commissioner of Customs was the proper officer to communicate the duty and redemption fine, and the respondent's appeal to the Commissioner (Appeals) was legally valid. The Supreme Court's judgment in the case of Smt. Ujjam Bai v. State of Uttar Pradesh was referenced, stating that jurisdiction means the authority to decide and that a quasi-judicial authority does not lose its jurisdiction by coming to a wrong conclusion. The government concluded that it had jurisdiction to entertain the Revision Application in terms of Section 129DD of the Customs Act, 1962.

2. Validity of Subsequent Declaration under Section 77 of the Customs Act, 1962:
The respondent did not declare the gold ornaments upon arrival, which led to their confiscation. The respondent's counsel argued that a declaration could be made subsequently, but the government noted that Section 77 uses the word "shall," indicating that a declaration must be made at the time of arrival. Mis-declaration or non-declaration is subject to confiscation under Section 111(l) and (m) of the Customs Act, 1962. The government referenced previous cases, including Rafat Fawl and V.N. Doshi, to support the position that the declaration must be made for the purpose of clearing the baggage. The appellate authority also held that the baggage declaration must be filed at the time of arrival, and the respondent's failure to do so justified the confiscation. Therefore, the subsequent declaration was not valid.

3. Correctness of the Duty Determined by the Appellate Authority:
The rate of duty applicable to baggage is determined by the rate in force on the date of declaration under Section 77. Since the respondent did not declare the gold ornaments, it amounted to non-declaration. The applicable rate on the date of import (9-1-1992) was 205% ad valorem plus 50% auxiliary duty. The concessional rate prescribed later did not apply to the respondent's case. The appellate authority's determination of a 50% duty rate was incorrect, as it was based on a subsequent notification effective from 1-3-1997. The government concluded that the appellate authority erred in determining the duty rate and quantum.

Fine Determination:
The Tribunal had allowed the clearance of the gold ornaments on payment of duty and a fine equivalent to the duty. However, the Tribunal erred in applying the V.P. Hameed case, which was distinguishable. The fine should not exceed the market price of the goods less the duty chargeable, as per the proviso to Section 125(1) of the Customs Act, 1962. The government set aside the appellate authority's order and allowed the Revision Application filed by the Commissioner. The respondent was advised to approach the Tribunal for rectification of any apparent mistake in their order dated 17-5-1999.

Conclusion:
The government's order set aside the appellate authority's determination of the duty rate and quantum, upheld the jurisdiction of the Revisionary Authority, and confirmed that subsequent declarations under Section 77 are not valid. The respondent was directed to seek rectification from the Tribunal if necessary.