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TMI Blog2010 (3) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... f attorney holder of CHA firm Mr. Pradeep Ambre in the case of mis-declaration of goods imported viz. ball bearings. The request made in this behalf by the DRI, Mumbai leading to import of ball bearing in the guise of Borax Decahydrate by some importers with the complicity of Custom House Agent M/s. East and West Shipping Agency was also considered. 4. The show cause notice dated 25th July, 2005 was issued to one M/s. Sonam Enterprises and M/s. Giriraj Enterprises, wherein one of the co-noticees was Pradeep H.Ambre along with 12 other persons. In the said show cause notice CHA, the respondents were not made a party. Mr. Pradeep Ambre was made a party who was holding power of attorney on behalf of the respondents. The Noticees in that case approached the Settlement Commissioner and got their cases settled. However, suspension of the respondents CHA was neither revoked nor any enquiry report was furnished to the respondents to present their defence. 5. Without issuing any notice and/or hearing the respondents, by an Order No. 24/2005 dated 4th May, 2005 suspended the CHA licence of the respondents. 6. The respondents aggrieved by the order of suspension dated 4th May, 2005, prefer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of any conscious knowledge can be attributed to Shri Pradeep Ambre. In fact, it is surprising that though the allegation of import of Ball Bearings in the guise of Borax Decahydrate in the past is leveled, any statement of Customs officer who examined and allowed clearance of the said past consignments has not even been recorded by DRI, nor any allegation against the examining officer for abetting has been leveled in the show cause notice, in absence of which it is not possible to even assume the probability of clearance of Ball Bearings in the guise of Borax Decahydrate. It is evident from the Show Cause Notice itself that even the seized consignments were opened and examined only after interception by DRI. Moreover, neither even a single piece of ball bearings alleged to be present in the past consignments was found in any warehouse, nor any instance of sale of any bearing has been established. In these circumstances, we, therefore, hold that even on the basis of preponderance of the past consignments is not established and that all allegations leveled against Shri Pradeep Ambre are baseless and unfounded. &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without any problem. Upon insistence of Shri Manish Doshi and on his assurance Shri Pradeep Ambre suggested the name of Borax Decahydrate . He thus submits that the involvement of Mr. Pradeep Ambre, representing the respondents cannot be ruled out. 15. Mr. Ashokan learned Counsel for the appellant submits that CESTAT has erred in setting aside the order-in-original dated 13th December, 2007 solely relying on the order of the Settlement Commissioner dated 14th November, 2006. He further submits that the Settlement Commissioner did not have any power to pass the order dated 14th November, 2006 and the same was passed without jurisdiction. In his submission, the order passed by the Settlement Commission is ab-initio, null and void being without jurisdiction. In support of his contention he relied on a judgment in the case of the Tata Consultancy Engineers v. The Workmen employed under them AIR 1981 S.C. 599 wherein Apex Court held that the party cannot confer jurisdiction on the Court by consent. What is without jurisdiction will always remain so. For the same proposition of law he further relied on the judgment in the case of Kiran Singh and others v. Chaman Paswan and others repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 10th April, 2004 passed by the Tribunal is solely based on the order passed by the Settlement Commissioner in favour of Shri Pradeep Ambre, the power of attorney holder of the respondents. The order passed by the Settlement Commissioner cannot be brushed aside considering the scheme of Chapter XVIA. It must be held good in law so long as it is not set aside. 19. It is an admitted fact that the order passed by the Settlement commissioner under the Customs Act, 1962 is in judicial proceedings and it is a judicial order. Section 127M of the Customs Act, 1962 provides that the proceedings before the Settlement Commission is a judicial proceedings. The said section reads as under: 127M : Proceedings before Settlement Commission to be judicial proceedings :- Any proceedings under this Chapter before the Settlement Commission shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 and for the purposes of Section 196 of the Indian Penal Code (45 of 1860) . 20. At this juncture it is relevant to take stock of Section 11 (explanation VIII) of the Code of Civil Procedure, which reads as under : 11. Res judicata :..... Explanation VIII : An issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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