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TMI Blog2000 (2) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... The Commissioner by the impugned order had held that there was enough evidence to show that the goods seized were liable to confiscation under Section 111 of the Customs Act, 1962 and they had became liable for penal action under Section 112 of the Act. In the light of the above conclusion, various amounts of penalties were imposed on the appellants under Section 112. 2. S/Shri J.P. Pathak, J.S. Agarwal, J.M. Sharma, Harish Gulbati and S.C. Chawla, Advocates/Consultants represented the appellants before us. Shri Mewa Singh, ld. SDR was present for the Respondent Commissioner. 3. Shri J.M. Sharma, ld. Consultant appearing for the S.D. Refrigerators and others raised a preliminary point relating to the jurisdiction of the Commissioner of Customs, Delhi to pass the impugned order. He narrated the facts leading to the impugned order and submitted that as per the records, Customs Officers of Delhi Customs had conducted searches of various premises and seized certain goods and vehicles on 18-11-1988 and 22-11-1988 on the reasonable belief that the said goods were smuggled goods. The total value of the said goods amounted to Rs. 20 crores. The Department's case was that Shri Ishwar Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Liberian Embassy which were got cleared at Calcutta Port by one T.R. Disouza of M/s. Hove Pack International, Calcutta and that the goods were dispatched to Delhi in trucks. Ld. Consultant submits that the impugned order of Commissioner, Delhi cannot be sustained in law as it had been passed by an authority who had no jurisdiction in the matter. 5. Shri J.S. Agarwal, Advocate appearing for Shri Punjabi and others submitted that he fully concurred with the submissions made by Shri J.M. Sharma, ld. Consultant on the question of jurisdiction of the Commissioiner, Delhi to pass the impugned order. He explained that in fact there were two proceedings, one relating to confiscation and the other relating to penalty. By Order-in-Original No. 326/91 dated 23-12-1991 Additional Collector, Delhi had directed confiscation of the said goods which were later confirmed by this Tribunal. Proceedings for imposition of penalty were taken out separately which had resulted in the impugned order passed by the Commissioner, Delhi. He submitted that under the Scheme of the Customs Act, it was for the Proper Officer as defined in Section 2 (34) thereof to initiate action under various provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appellants had not raised the point relating to jurisdiction at the time of the adjudication proceedings and they could not raise the same at the stage of the appellate proceedings. He submitted that the proceedings initiated against the appellants for imposing penalty were on the basis of contravention of the provisions of Section 112 of the Customs Act read with Section 111 thereof. Section 111 made goods brought from a place outside India liable to confiscation under certain circumstances. Section 111 (m) made any goods which were imported which did not correspond in respect of value or other particulars liable to confiscation. Section 112 made any person who acquired possession or was in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling, purchasing or in any manner dealing with any goods which he knew or had reason to believe are liable to confiscation under Section 111 liable to penalty. In the instant case it was an admitted fact that the importer had mis-delcared the goods as building material in the Bill of Entry and had got clearance thereof as diplomatic goods and got them transported to Delhi. The action initiated again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial jurisdiction over the place of import/clearances who can pass an order extending the period for issue of a show cause notice under Section 124 for confiscation of the goods. However, it was also observed in the same order at paragraph 9 that the said principle would not apply to clandestinely imported goods i.e. goods in respect of which no order has been passed under Section 47 and no assessment had been made. In such a case, there was no assessment order passed by a Proper Officer having territorial jurisdiction over the place where the goods were imported. It was held that either of the two Proper Officers, namely, the Proper Officer having jurisdiction over the place of seizure or the Proper Officer having jurisdiction over the place of clandestine import can take action. It is to be noted that there was no finding to the effect that the proper officer within whose jurisdiction the seizure took place cannot adjudicate penalty. The ratio was to the effect that either of the two Proper Officers could initiate action and adjudicate the notice. Since a part of the cause of action is at the place to which the goods had been conveyed, the Proper Officer having territorial jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the sites of the seized goods will not lose his authority to initiate proceedings for confiscation or penalty merely because the goods were initially imported and cleared for home consumption by another proper officer. Further, the declaration in the Bill of Entry had described the goods as construction material. The Department had alleged that there was a mis-declaration on the part of the importer inasmuch as the goods that were actually imported were not construction material but some other goods. To the extent the clearance that was given under Section 47 by the Proper Officer at Calcutta Port did not correspond to the goods seized by the Customs Authorities, Delhi, it is clear that there is no nexus between the clearances under Section 47 and the impugned goods. In other words, the mis-declaration of the goods had the effect of breaking the nexus between the Bill of Entry and the seized goods. We also observe that in none of the decisions relied on by the appellants for questioning the jurisdiction of the Commissioner in the present appeal, the actual identity of the goods was in dispute. The said decisions are thus clearly distinguishable on facts. 12. In the above view o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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