2000 (6) TMI 92 - AT - Customs

Summary

Issues Involved:

1. Adjudication of duty demands on imports with pending proceedings.
2. Jurisdiction over provisionally assessed imports.
3. Adjudication of demands on goods sold by auction.
4. Competence to adjudicate on imports against licenses registered elsewhere.
5. Adjudication of demands where bonds have been discharged.
6. Verification of exports to Nepal.
7. Verification of exports to Hong Kong and USA.
8. Validity of licenses under the DEEC scheme.

Issue-wise Detailed Analysis:

1. Adjudication of Duty Demands on Imports with Pending Proceedings:

The Commissioner refused to adjudicate on demands for duty on imports where demands had already been raised and were pending adjudication before the Assistant Commissioner. The appeal argued this was an artificial distinction to avoid jurisdiction. However, it was concluded that multiple proceedings for the same goods cannot take place simultaneously and the Commissioner's refusal was neither illegal nor improper. The Commissioner had the power under Section 5(2) of the Customs Act, 1962, but his decision not to adjudicate was not an illegality or impropriety.

2. Jurisdiction Over Provisionally Assessed Imports:

The Commissioner declined to adjudicate imports against three licenses because they were provisionally assessed, relying on the Bombay High Court judgment in M/s. Godrej Boyce & Manufacturing Co. The appeal contested this, but it was upheld that the judgment applies equally to provisional assessments under the Customs Act. The demand for duty is premature until provisional assessment is final.

3. Adjudication of Demands on Goods Sold by Auction:

The Commissioner's refusal to adjudicate demands on goods sold by auction under Section 48 of the Customs Act, 1962, was upheld. It was concluded that the benefit of the notification was not extended to the goods sold by the custodian, and duty payable is to be recovered from the sale proceeds as per Section 50 of the Act.

4. Competence to Adjudicate on Imports Against Licenses Registered Elsewhere:

The Commissioner's claim of incompetence to adjudicate show cause notices for imports against licenses registered elsewhere was rejected. It was held that the adjudicating authority at the port of importation is competent to extend or decline the benefit of the notification, irrespective of where the licenses were registered.

5. Adjudication of Demands Where Bonds Have Been Discharged:

The Commissioner declined to adjudicate notices where the importer's bond had been discharged, relying on Circular No. 2/92. The appeal contested this, citing the Supreme Court judgment in Sheshank Sea Foods Pvt. Ltd. It was concluded that customs authorities have jurisdiction to investigate and issue demands for wrong availment of notification, and the circular does not preclude raising demands where independent evidence shows exports have not taken place.

6. Verification of Exports to Nepal:

The Commissioner's finding that exports to Nepal had taken place was challenged on various grounds, including terrain inspection, sales tax records, and affidavits. The appeal failed to provide sufficient material to question the Commissioner's findings. The absence of the person who affirmed the affidavit three years later was insufficient to conclude fraud. The Commissioner's reliance on sales tax records and the statement of M.P. Singh was upheld. The appeal did not effectively counter the Commissioner's conclusion that exports had indeed taken place.

7. Verification of Exports to Hong Kong and USA:

The Commissioner's finding that exports to Hong Kong and USA were genuine was upheld. Certificates from the Registrar General of Hong Kong and letters from the Commissioner of Customs, Hong Kong, confirmed the existence of the companies involved. The appeal did not provide sufficient material to counter these findings.

8. Validity of Licenses Under the DEEC Scheme:

The appeal emphasized that licenses under the DEEC scheme were cancelled and penalties imposed, arguing that exports did not take place. However, the Supreme Court's judgment in East India Commercial Corporation was cited, and it was noted that the licenses were valid when the goods were imported. The cancellation of licenses by the Additional Director General of Foreign Trade was set aside for contravention of natural justice principles, and the matter was remanded for fresh adjudication.

Conclusion:

The Commissioner's order was upheld except regarding goods covered by bills of entry where DEEC books were not returned or imports made against licenses registered elsewhere. The findings that exports to Nepal were genuine preclude further action unless exports were otherwise. The appeals were dismissed with partial allowance for modification.