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TMI Blog1989 (5) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... se Officers concerned. 2. The packages were sealed and they were transported to Indo-Nepal Border and the relevant documents along with goods were presented to the Indian Customs Officers at Raxaul. 3. At this stage, the Customs Officers noticed at Raxaul that the Central Excise duty was evidently paid according to the documents at the rate of 5% whereas it ought to have been paid at the rate of 15%. 4. The Customs Officers thereupon seized the consignment citing Section 11 of the Customs Act, 1962 read with Section 3(1) of the Imports and Exports (Control) Act, 1947 and Rule 9(1) of the Central Excise Rules. 5. The show cause notice was issued by the Assistant Collector of Customs at Raxaul invoking Section 11 of the Customs Act re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t applicable. 8. No violation of Customs Act or the Imports Exports (Control) Act, 1947 was involved in this case and the Department has not shown as to which clause of Section 113 was attracted and from which clause of the Imports Exports (Control) Act was attracted and how fine and action could be taken under both the Customs and Central Excise Acts and the goods could be confiscated and penalty imposed under the Customs Act, 1962. 9. In view of the above position, it was their contention that they had got prima facie a strong case and the balance of convenience was in their favour. 10. Heard Shri P.C. Jain, the Ld. JDR who drew our attention to the Order-in-Original. 11. In view of the above facts and circumstances, we consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoked Section 113 of the Customs Act and asked the appellants to show cause to the Collector of Customs (Preventive), Patna as to why the goods should not be confiscated under Section 113 of the Customs Act and why penalty should not be imposed under Section 114 of the Customs Act read with Section 3(2) of the Imports Exports (Control) Act, 1947. 19. We also notice that the case was, however, not heard by the Collector of Customs, Patna. But it was adjudicated by the Additional Collector of Customs, Muzaffarpur for reasons of which have not been specified. 20. We also notice that the Ld. Additional Collector of Customs has found it to be a case of removal of excisable goods from a factory at Bangalore (for the purpose of export to Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing modifications and alterations which the Central Government considers necessary and desirable to adapt those provisions to the circumstances namely ..... 21. A plain reading of the above provisions shows that certain sections of the Customs Act have been made applicable to the Central Excise cases for the purpose of enabling the proper (jurisdictional) authorities under the Central Excise Act to follow a procedure similar to that provided under the Customs Act in respect of like matters in the enumerated circumstances. 22. These provisions do not empower the Assistant Collector of Customs or the Collector/Additional Collector of Customs (or any other officers of customs for that matter) to take cognizance of violation of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of Customs Act, ipso facto, and the Customs Officers do not get any authority to pass any orders under the Customs Act, with reference to the provisions of Central Excise Law. The departmental action is, therefore, misconceived in this respect. 27. We further note that although the show cause notice makes a reference to Section 113 and Section of the Customs Act, no case has been made out with reference to Section 113 of Customs Act, 1962 in the show cause notice and there is no evidence to show that the appellants were making an attempt to illegally export the goods to Nepal. On the contrary, from the submissions made before us by the Ld. Counsel (and not contradicted by the Departmental Representatives), it is abundantly clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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