9911796707
TMI Blog1983 (8) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... to the petitioner to contest its extension, the Collector of Central Excise, had any jurisdiction to pass the impugned Adjudication Order, confiscating the seized goods and imposing the penalty of Rs. 20,000/- against the Petitioner? (b) Whether, in view of the Notification No. 35-Cus., dated 4-3-1972, the Collector of Central Excise, Allahabad had any jurisdiction to issue the show cause notice dated 27-1-1970 against the Petitioner? (c) Whether, in view of the Notification No. 35-Cus., dated 4-3-1972, the jurisdiction of the Deputy Collector of Central Excise, Allahabad stood divested in favour of the Collector of Customs, Indo-Nepal Border, Patna? (d) Whether, in view of the provisions of the Notification No. 33B-Cus., dated 24-2-1978 appointing Deputy Collector of Customs, Muzaffarpur, the Deputy Collector, Central Excise, Allahabad had any jurisdiction to pass the impugned Adjudication Order on 30-12-1978? (e) Whether, under the Facts and circumstances of the case, the personal penalty of Rs. 20,000/- imposed against the petitioner by the Deputy Collector of Central Excise, Allahabad, was legal and valid in law? 3. The relevant facts have all been set out in the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow cause issued beyond 6 months from the date of seizure was without jurisdiction; (e) the Adjudication Order dated 30-12-1978 passed by Deputy Collector of Central Excise, Allahabad was wholly without jurisdiction, in view of the divestiture of the territorial jurisdiction of the Collector of Allahabad over the District of Lucknow by Notification No. 35, dated 4-3-1972 where under the Collector of Customs (preventive), Patna was appointed to be Collector of Customs for the District of Lucknow; 5. It was held, by a majority of us, that - (a) in terms of the decision of the Supreme Court in A.I.R. 1972 S.C. 689 [= 1983 E.L.T. 1477 - Assistant Collector of Customs v. Charan Dass Malhotra] and the High Courts in 1982 E.L.T. 902 and 1983 E.L.T. 1715, the confiscation of the goods cannot be sustained and accordingly the goods are to be returned to the Appellant within three months from the date of communication of our order; (b) nevertheless, the corrigendum issued to the show cause notice cannot be said to be without jurisdiction. The corrigendum merely asked the Appellant to show cause to the Deputy Collector in whose power the case fell instead of the Collector. There is no i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise, Allahabad continued to exercise any such jurisdiction specifically vested in the Collector of Customs, Patna. Similarly, with the appointment of the Deputy Collector of Customs, Muzaffarpur on 24-2-1978, the jurisdiction of the Deputy Collector of Central Excise, Allahabad had been taken away. Accordingly, the Adjudication by Deputy Collector of Central Excise, Allahabad on or about 30-12-1978 was without any jurisdiction and hence a nullity in law. 7. Thus, while the majority had decided upon setting aside the order of confiscation and confirming the levy of penalty, it was held, in dissent, that in consequence of the order of Adjudication, itself, being without jurisdiction and hence a nullity in law, the levy of penalty cannot also sustain. No opinion was expressed in the dissenting order on the other issues. 8. In the hearing of the instant Application, it was contended for the Applicant, inter alia, that - (a) once the continued detention of the goods beyond 6 months was held to be illegal, in the facts and circumstances of the case, it would follow that the levy of penalty cannot also sustain, inasmuch as - (i) the notice to show cause issued under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the extension of time for the issue of a show cause notice; (b) Section 112(a) speaks of goods rendered liable to confiscation . When the goods had to be released from detention, it can plausibly be urged, they ceased to be liable to confiscation. Release from detention is a negation of their liability to confiscation. Confiscation, in absentia, is as meaningless as it is futile. Once, therefore, they had to be released from detention, they are no longer liable to confiscation. If they were not liable to confiscation, there could not be any levy of a penalty; (c) on the other hand, it could also be urged that Section 111 of the Act envisages that the accused person by an Act of commission or omission should have rendered the goods liable to confiscation under Section 111 or abets such act of commission or omission [sub-section (a)] or he should be found to have indulged in one or more of the activities specified in sub-section (b) in relation to such goods knowing or having reason to believe that the goods are liable to confiscation under Section 111. It is not envisaged that the goods should in fact be confiscated. If the adjudicating officer comes to a finding that the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
