2024 (7) TMI 272 - HC - Customs

Jurisdiction - power of appellate authority to remand the matter to the adjudicating authority - monetary threshold - HELD THAT - The Department appealed against the order in original primarily on the basis of N/N. 29/2022. Such notification authorizes the Deputy Commissioner of Customs or the Assistant Commissioner of Customs to adjudicate matters where the duty involved is up to Rs.5 lakhs. If such duty is up to Rs.50 lakhs, the Additional Commissioner of Customs and the Joint Commissioner of Customs are authorized. Only the Principal Commissioner of Customs and the Commissioner of Customs are authorized to make the assessment without any monetary limit. Since the contention that the order in original was without jurisdiction was accepted by the appellate authority on the basis of the above mentioned notification, a remand could not have been made to the authority which issued the order in original. Sub-Section 3 of Section 128A empowers the Commissioner (Appeals) to remand the matter to the adjudicating authority. The appellate authority was empowered to remand the matter to a person who qualifies as adjudicating authority. Such adjudicating authority means a person competent to pass orders. On the facts of this case, in view of the jurisdictional objection, which was accepted by the appellate authority, remand could not have been made to the original authority. Therefore, the contention that the remand could not have been made to the proper officer is rejected as untenable. On examining the impugned order from this perspective, undoubtedly, the order does not record a finding on this issue. The order impugned before the appellate authority was set aside on the limited ground that the officer who issued the order in original did not have jurisdiction. Consequently, the matter was remanded to a proper officer. It is always open to the petitioner to raise the plea of limitation before the proper officer upon remand. Hence, interference with the impugned order is not warranted on this ground. Petition dismissed.

Issues involved:
Challenge to appellate order and show cause notice, authority to remand the matter, jurisdiction of appellate authority, remand to proper officer, plea of limitation, interference with impugned order, statutory appeal, challenge to show cause notice.

Analysis:

1. Challenge to Appellate Order and Show Cause Notice:
The writ petition challenges an appellate order dated 15.05.2024 and a show cause notice dated 23.07.2021. An order dated 21.07.2022 was issued by the second respondent, which was appealed by the Customs Department. The appeal resulted in setting aside the impugned order and remanding the matter to a proper officer, leading to the challenge in W.P.NO.15896 of 2024.

2. Authority to Remand the Matter:
The petitioner argues that the appellate authority can only remand the matter to the adjudicating authority, not to a proper officer. The contention is based on clause (b) of sub-Section 3 of Section 128A of the Customs Act, 1962. The petitioner further contends that the remand can only be to a subordinate authority, not to a coordinate or higher authority like the Commissioner of Customs or the Principal Commissioner of Customs.

3. Jurisdiction of Appellate Authority and Remand to Proper Officer:
The respondents argue that the appellate authority correctly remanded the matter to a proper officer as the original authority lacked jurisdiction as per Notification No.29/2022-Customs. The appellate authority's power to remand to an adjudicating authority is supported by Section 128A. The definition of adjudicating authority includes a person competent to pass orders, excluding the Board, Commissioner(Appeals), or Appellate Tribunal.

4. Plea of Limitation:
The petitioner raised a plea of limitation under sub-Section 9(b) of Section 28 of the Customs Act, claiming no finding was recorded on this issue in the impugned order. However, the order was set aside primarily on the jurisdictional issue, and the remand to a proper officer allows the petitioner to raise the plea of limitation before the proper officer upon remand.

5. Interference with Impugned Order:
The judge declines to interfere with the impugned order, stating that the petitioner can still present a statutory appeal. Since the challenge to the show cause notice is linked to the challenge of the remand order, and the plea of limitation can be raised before the proper officer upon remand, interference with the impugned order is deemed unnecessary.

6. Statutory Appeal and Challenge to Show Cause Notice:
The writ petitions are dismissed without costs, allowing the petitioner to pursue a statutory appeal. The challenge to the show cause notice is contingent on the success of challenging the remand order, which ultimately fails.

This detailed analysis covers the issues involved in the legal judgment, outlining the arguments presented by both parties and the court's reasoning in dismissing the writ petitions.

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