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TMI Blog1991 (5) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment under Section 47 of the Customs Act, 1962 duly passed by the Assistant Collector of Customs, Bombay, apparently after satisfying himself, the Delhi Collector had no jurisdiction to adjudicate the proceedings in respect of the goods cleared at Bombay Custom House. 3. The contention of the Department is that the Delhi Collector has jurisdiction since the goods were cleared fraudulently at Bombay Customs. According to Department, M/s. Casino Electronics (P) Ltd. (2nd appellant) and its Director Shri S.M. Aggarwal are alleged to have fraudulently imported 63 Fax Machines by purchasing Non-transferable additional licenses of 3 Export houses, viz M/s. Rattan Re-Rollers, Calcutta, M/s. East India Leather, Calcutta and M/s. Garment Crafts, Jaipur. On payment of percentage of the face value of the licenses M/s. Casino Electronics (P) Ltd., operated on the said licences and completed all formalities clandestinely on behalf of Export Houses and in turn sold the machines to buyers in the open market. Export Houses allowed them to import these Fax Machines on receipt of service charges/commission of the value of the licence and cleared consignment of Fax Machines on behalf of only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority and submitted that Delhi Collector has jurisdiction since the goods were cleared fraudulently by M/s. Casino Electronics, Delhi from Bombay Customs by deliberately suppressing certain facts from proper Officer of Bombay Customs. Reliance was placed on certain observations made by the Hon ble Delhi High Court in the Jain Shudh Vanaspati case [1982 (10) E.L.T. 43 (Delhi)] which had been followed by the another judgement of the Hon ble Delhi High Court in CWP No. 3454/87, wherein it has been held as under :- .decision in Jain Shudh Vanaspati Another was referred to me alongwith S. Ranganathan, J. we have held that the jurisdiction of the officer that the goods imported are not prohibited is final once they were cleared under Section 47. We have further held the finality cannot be disturbed unless the Department successfully shows that there was fraud or deliberate suppression. He said that ratio of the decisions cited by the appellants were considered by the Adjudicating Authority and they are distinguishable in view of the fact that the goods were imported fraudulently and gross contravention of conditions of additional licence. In the present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs control, the Department can still issue a notice under Section 28 of the Act or whether only proceedings under Section 129-D could be taken. The further submission was that, even if it is held that the goods were sold to persons who were not actual industrial users, it could at best amount to the violation of the post importation condition in respect of which the power to adjudicate is vested in the CCI D and not in the Customs authorities, as has been held in Audio Vision v. Collector of Customs [1987 (31) E.L.T. 796]. 9. We have carefully considered the arguments advanced on both sides, written submissions and perused the records with reference to facts and circumstances of the case. We are confining ourselves to the question of jurisdiction at this stage as this is a basic threshold question. It is well settled principle of law that jurisdiction cannot be assumed or conferred even by mutual consent. The authority under the Statute could exercise his powers vested in him as per provisions specified under the Statute. In the Customs Act, the jurisdiction is territorial-cum-functional jurisdiction. That is to say, jurisdiction is vested in the authorities appointed unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is committed at one place and a part at another place and/or the offence is of a continuing nature, we need not look to the Cr.P.C., because the Customs Act itself takes care of such situation(s) by virtue of the authority vested in the Government to issue appropriate notification(s) under Section 4 and such notifications have indeed been issued under Section 4 vesting all India jurisdiction in the Director of Revenue Intelligence and the Director of Inspections. In the instant case, the goods were imported at Paradwip and cleared by a proper officer of Paradwip Customs. If the Collector of Customs, Calcutta, had reason to suspect or a reason to believe that there was going to be attempt to import, or the import of goods, liable to confiscation had taken place and the offence was or was likely to be that of a continuing nature, and more than one Collectorate were likely to be involved, the proper course of action was to pass on the information to the Director of Revenue, Intelligence for investigation so that seizure, if necessary, could be made by them and the case could be adjudicated by the Director of Inspections (under the orders of the Board, if necessary) in exercise of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in relation to further disposals, but this is a collateral matter arising out of and flowing from the main allegations. 15. Hence in respect of these four appeals the cases are essentially similar to that of Ramnarain Bishwanath v. Collector of Customs, Calcutta reported in 1988 (34) E.L.T. 202 (Tribunal) in so far as the point of jurisdiction is concerned. As such, following the ratio thereof it is the proper officers of Bombay Customs who were competent to take necessary action in accordance with the law. The matter could of course be investigated by DRI but it was for Bombay Customs to take such course of action as was or may be open to it in law. These matters were therefore beyond the jurisdiction of the Additional Collector of Customs, Delhi who has adjudicated the cases. As such I agree with my learned brother Member (Judicial) in so far as these cases are concerned. And further observe that in these circumstances appropriate notices could be issued only by Bombay Customs and the points such as the extent and nature of Customs jurisdiction (versus CCIE s jurisdiction), purchase/sale of licences or High Sea sales of goods and legality or otherwise of importation could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Machine Tools (India) Limited. 4. Appeal No. C/1559/90-NRB - M/s. Casino Enterprises 5. Appeal No. C/81/90-NRB - M/s. Woodchunk 6. Appeal No. C/82/90-NRB - M/s. Modelama Exports 7. Appeal No. C/460/90-NRB - M/s. Ashoka Electronics Corporation 8. Appeal No. C/451/90-NRB - M/s. British Aerospace are concerned as their cases are required to be treated on a different footing, the appeals are required to be posted for hearing on merits, when the points urged by them could be considered at length. 19. It is ordered accordingly. (S.K. Bhatnagar) Member (Technical) CEGAT, NEW DELHI 20. In view of the difference of opinion between Hon ble Member (Judicial) and myself the matter is submitted to the Hon ble President for reference to a third Member on the following point of difference. 21. Whether the Additional Collector of Customs New Delhi had jurisdiction to adjudicate and pass orders in the matters in so far as it relates to 1. Appeal No. C/2951/90-NRB - M/s. Grand Slam International 2. Appeal No. C/1409/90-NRB - M/s. Birla Eastern Limited 3. Appeal No. C/7/90-NRB - M/s. Machine Tools (India) Limited 4. Appeal No. C/1559/90-NRB - M/s. Casino Enterprises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nally cleared. Therefore, in the case of 8 appellants, listed above, also the jurisdiction to adjudicate will not lie with the Delhi Customs, but will lie with the Bombay Customs authority where the goods were originally cleared under valid licence under Sec. 47 of the Customs Act. Further, Sh. B.N. Sharma, Ld. Consultant, submitted that his clients had purchased Fax Machines from M/s. Grand Slam International against proper invoice and payment by cheque. It was also submitted by the Ld. Consultant that the cause of action in these cases also arose at the time of import of the goods at Bombay and he placed reliance regarding jurisdiction in the case of Ramnarain Bishwanath decided by the Tribunal reported in 1988 (34) E.L.T. 209. 24. Sh. L.C. Sikka, Ld. Counsel, submitted that in the case of his clients, the machines have been purchased from a firm, who, in its turn, had got it from M/s. Casino Enterprises. The Ld. Counsel submitted that such purchase must be considered as a continuing cause of action and as such the jurisdiction to adjudicate such cases also will lie with the Bombay Customs. 25. Mrs. Aruna Jain, Ld. Counsel, contended that violation of any post-importation con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring both the sides and perusing the citations made by the Ld. Advocate, we find that though in the cases of Relish Foods, Metro Exports and MK Fisheries (supra), the question involved was with regard to duty demand in respect of DEEC Scheme on the basis of the undertaking given to the Customs at the time of clearance, in respect of the other two cases, namely, cases reported in 1988 (34) E.L.T. 202 and 1988 (36) E.L.T. 713, these relate to clearance against licences, where the confiscation had been ordered under Sec. 111(d) of the Customs Act by an officer of a jurisdiction other than the officer of the concerned jurisdiction port, which has allowed the goods. We have no reason to differ from the view taken mainly because of the fact that in this case, the goods have been ordered confiscation under Sec. 111(d) and the allegation is one of transfer of licence and commission of fraud at the point of importation, which subsequently has reportedly come to their knowledge. In view of this, the proper authority to adjudicate the case would be the officer of the Delhi Customs. There is no bar in seizure of contraband goods anywhere in India by the jurisdictional officer but where an of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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