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2019 (3) TMI 523 - AT - Customs100% EOU - penalty - jurisdiction of officer who issued SCN - time limitation - whether the Commissioner, Customs had competent jurisdiction to issue a show cause notice proposing confiscation, to a 100% EOU under the supervision of Central Excise Officers? - Held that - In the case of EOU there is duality of jurisdiction. The proper Officer of Excise has jurisdiction till the goods are warehoused and are released for clearance, but beyond this stage, the proper officer is the one under Customs Act. Otherwise also, in case of exports, the Customs procedure finds conclusion at the Customs because thereafter the goods actually leave the Indian Territory. Notification 27 dated 07.07.1997 as impressed upon by the Department is perused vide entry No.7 of the said Notification Commissioner of Customs, Delhi has been declared as the proper officer to carry out Customs Procedure. Thus, the moment the manufactured goods enter the precincts of Customs Commissionerate they have to be dealt with by them and Notification No. 27 has to come into play - Stage clearance of warehoused goods onwards is a function under Customs Act, the proper Officer is definitely the Officer of Customs. The situation stands clarified vide Circular No.126 dated 12.12.1995 stands modified vide Circular No.27 of 10.05.1996. It has been clarified that there is no overlapping of jurisdiction but a clear cut demarcation of function to be performed by Central Excise Commissionerate and Customs formation. Since in the present case, the goods were intercepted at Mumbai Customs area. They had already reached into the jurisdiction of Customs Commissionerate. The Commissioner, Customs was the competent/ proper Officer to issue the impugned show cause notice - The issue of jurisdiction is therefore decided against the appellant. Time limitation - Held that - Whether the show cause notice dated 19.03.1999 is within the period of 6 months in terms of Section 124 of the Customs Act? - Held that - The detention is a case prior of acquiring convection that seizure is required and hence is different from seizure. As per Section 124 of Customs Act, period of 6 months has to reckon from the date of seizure - the show cause notice is well within the limitation period. Penalties - it is impressed upon by the appellant that the statement of Mr. Rakesh Kumar Bhagat dated 05.10.1998 as is relied upon by the adjudicating authority to confirm the demand and impose the penalty was retracted vide letter dated 23.11.1998, since it amounts to withdrawal of admission, if any, the same cannot be read against the appellant - Held that - Though there has been a letter dated 23.11.1998 retracting the said admission but to our opinion same is not sufficient, in view of above discussed circumstances and also for the reason that the retraction came not from the horses mouth but by the appellants Counsel that too vide a letter - there is no infirmity in the order while relying upon the confessional statement of the proprietor of the appellant for confirming the impugned demand. Finally coming to the grievance of the appellant about the test report as prepared by Doordarshan about the impugned samples, I am of the opinion that to test the veracity of the examiner thereof, the appellant was granted the opportunity of cross-examination. Perusal thereof shows that the test report mentioned the initials AKM i.e. of Mr. Anil Kumar Mangli, who was Station Engineer, Doordarshan Kendra, Delhi and was competent to conduct the impugned test - The reply of Doordarshan Kendra dated 28.04.2006 as impressed upon by the appellant is opined to have no significance in view of the above deposition as made by the witness, who prepared the test report. The entire above evidence also falsifies any need for Department to investigate the scrap vendors from the local market from whom the appellant admittedly purchased the old video cassettes. Appeal dismissed - decided against appellant.
Issues Involved:
1. Jurisdiction of the Commissioner of Customs to issue the Show Cause Notice (SCN). 2. Whether the SCN was issued within the limitation period. 3. Merits of the case regarding the use of old and used tapes instead of new tapes for manufacturing video cassettes. Issue-wise Detailed Analysis: 1. Jurisdiction: - Jurisdiction of Commissioner, Customs: The appellant argued that the Commissioner of Customs did not have the authority to issue the SCN as the goods were under the supervision of Central Excise authorities. The appellant relied on the Ferro Alloy case, which held that in cases of warehoused goods, the jurisdiction for raising demands lies with the proper officer under the Central Excise Act. - Duality of Jurisdiction: The Tribunal clarified that in cases involving 100% EOUs, there is dual jurisdiction. The Central Excise authorities have jurisdiction until the goods are warehoused and released for clearance. Once the goods leave the warehouse and enter the Customs Commissionerate's jurisdiction, the Customs authorities acquire jurisdiction. - Notification No. 27: The Tribunal referred to Notification No. 27 dated 07.07.1997, which designates the Commissioner of Customs as the proper officer to carry out customs procedures. Thus, once the goods reach the Customs Commissionerate, the Commissioner of Customs is the proper officer. - Conclusion on Jurisdiction: The Tribunal concluded that the Commissioner of Customs was the competent officer to issue the SCN, and the issue of jurisdiction was decided against the appellant. 2. Limitation: - Detention vs. Seizure: The appellant contended that the SCN was issued beyond the limitation period, arguing that the period should be reckoned from the date of detention (30.09.1998). The Department argued that the goods were seized on 19.11.1998, and the SCN issued on 19.03.1999 was within the six-month limitation period. - Legal Distinction: The Tribunal clarified that detention and seizure are different. Detention is a preliminary step for examination, while seizure involves the exercise of dominion over the goods based on a reason to believe that the goods are liable for confiscation. - Relevant Case Law: The Tribunal referred to various judgments, including those from the High Courts of Kolkata, Allahabad, and Madras, which distinguished between detention and seizure. - Conclusion on Limitation: The Tribunal held that the limitation period should be reckoned from the date of seizure (19.11.1998). Therefore, the SCN issued on 19.03.1999 was within the limitation period, and the issue of limitation was decided against the appellant. 3. Merits of the Case: - Confessional Statement: The appellant's proprietor admitted to using old and used video tapes for manufacturing video cassettes and selling the imported new tapes in the local market. This statement was initially made voluntarily and without protest, corroborated by the appellant's voluntary deposit of duty. - Retraction of Statement: The appellant later retracted the statement through a letter from their counsel. However, the Tribunal found the retraction insufficient, as it was delayed and not directly from the appellant. - Test Report from Doordarshan: The appellant challenged the test report from Doordarshan, arguing that the Kendra lacked the necessary equipment for testing VHS video tapes. The Tribunal noted that the appellant was given the opportunity to cross-examine the Doordarshan engineer, who confirmed the poor physical condition of the tapes, indicating they were old and used. - Conclusion on Merits: The Tribunal found no infirmity in the order confirming the demand and imposing penalties based on the confessional statement and the test report. The appellant's arguments were not sufficient to overturn the findings. Final Judgment: - The Tribunal upheld the order under challenge, confirming the confiscation of the goods, appropriation of the duty, and imposition of penalties. The appeal was dismissed.
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