9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (11) TMI 651 - HC - CustomsAppeal before the Tribunal - Under Customs Act or Central Excise Act - Scope of the order passed by proper officer - demand in respect of import of goods at concessional rate of duty - specific case of the petitioner in the present writ petition is that the order passed by the Appellate Tribunal was erroneous inasmuch as an Officer of the Central Excise Department was a Officer of the Customs under notification issued under Section 4(i) of the Customs Act, 1962 - HELD THAT - Two show cause notices came to be issued by the Commissioner of Central Excise, Chennai III, Commissionerate within whose jurisdiction to the third respondent has its factory to demand the customs duty in terms of Rule 8 of Customs (Import of goods at concessional rate of duty for manufacture of excisable goods) Rules, 1996 - it is only the Central Excise Officer as defined Section 2(b) of the Central Excise Act, 1944 and not a Proper Officer as defind in Section 2(34) of the Customs Act, 1962 who is empowered to demand duty payable by the third respondent to recover duty under Section 28 of the Customs Act, 1962. Show Cause Notices dated 11.02.2001 and 18.02.2002 seeking to recover the customs duty together with interest thereon issued by the second respondent Commissioner of Central Excise, Chennai III, Commissionerate was within the four corners of law - the second respondent Commissioner of Central Excise, Chennai III, was also competent authority to decide and pass order on the improts made by the petitioner under the resepctive customs notification in terms of Rule 8 of Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996. Since the order was passed by the second respondent, Commissioner of Central Excise, Chennai III, appeal was only to be filed before the Tribunal in Form AE-3 under Section 35(B) of the Central Excise Act, 1944 and not under Section 129(A) of the Customs Act, 1962. Therefore, the Customs Appeal filed by the petitioner in C/104/03/MAS against an order passed by the Commissioner of Central Excise, Chennai III was not proper - The second respondent Commissioner of Central Excise, Chennai III ought to have filed an appeal against final order No.1409 of 2007 dated 31.10.2007 of the first respondent, Appellate Tribnal under Section 35 G of the Central Excise Act, 1944. Petition dismissed.
Issues Involved:
1. Jurisdiction of the Commissioner of Central Excise to issue Show Cause Notices demanding customs duty. 2. Validity of the impugned order dismissing the application for condonation of delay in filing the appeal. 3. Competence of the Commissioner of Central Excise to adjudicate matters related to customs duty. 4. Proper appellate forum for challenging the Order in Original. Issue-wise Detailed Analysis: 1. Jurisdiction of the Commissioner of Central Excise to issue Show Cause Notices demanding customs duty: The petitioner challenged the impugned order passed by the Appellate Tribunal, which dismissed the Miscellaneous Application for condoning the delay in filing the appeal. The core issue was whether the Commissioner of Central Excise had the jurisdiction to issue Show Cause Notices demanding customs duty. The Tribunal held that the Commissioner of Central Excise, Chennai III Commissionerate, lacked jurisdiction to demand customs duty, as this power was vested solely with the Commissioner of Customs, Bangalore. The Tribunal cited Section 28 of the Customs Act, 1962, which specifies that only the Commissioner of Customs can invoke the provision for demanding customs duty. The Tribunal also referenced Rule 8 of the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996, which allows the Commissioner of Central Excise to demand duty only in cases of misuse of imported materials, a scenario not alleged in the Show Cause Notices. 2. Validity of the impugned order dismissing the application for condonation of delay in filing the appeal: The Tribunal dismissed the application for condonation of delay, stating that the Commissioner of Central Excise had no jurisdiction to issue the Show Cause Notices. The Tribunal found no merit in granting an adjournment to obtain a report from the Commissioner of Customs (Port-Exports). The Tribunal emphasized that the proper officer to demand customs duty was the Commissioner of Customs, Bangalore, and not the Commissioner of Central Excise, Chennai III Commissionerate. 3. Competence of the Commissioner of Central Excise to adjudicate matters related to customs duty: The Tribunal concluded that the Commissioner of Central Excise was not competent to adjudicate matters related to customs duty. The Tribunal referenced Notification No.27/97-Cus (NT) and subsequent amendments, which designate the Commissioner of Customs, Chennai, or proper officers subordinate to him as the authorities competent to demand duty short levied on goods imported through Chennai port. The Tribunal clarified that the Commissioner of Central Excise cannot issue a Show Cause Notice containing proposals to be adjudicated by another Commissioner unless specifically authorized by the Central Board of Excise and Customs (CBEC). 4. Proper appellate forum for challenging the Order in Original: The Tribunal noted that the appeal against the Order in Original No.15/2002 dated 31.07.2002 should have been filed before the Tribunal in Form AE-3 under Section 35(B) of the Central Excise Act, 1944, and not under Section 129(A) of the Customs Act, 1962. The Tribunal observed that the Customs Appeal filed by the petitioner was improper and that the Central Excise Appeal in E/786/03/MAS had already been dismissed. The Tribunal advised the Commissioner of Central Excise, Chennai III, to file an appeal against the final order under Section 35 G of the Central Excise Act, 1944, to address the revenue leakage caused by the third respondent. Conclusion: The Tribunal dismissed the writ petition, stating that the Commissioner of Central Excise lacked jurisdiction to issue Show Cause Notices demanding customs duty. The Tribunal also expunged unnecessary observations casting aspersions on the then Commissioner of Customs. The Tribunal emphasized that the third respondent should not benefit from jurisdictional confusion and advised the Commissioner of Central Excise to take appropriate steps to address the situation. The writ petition was dismissed with no costs, and the connected miscellaneous petition was closed.
|
