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TMI Blog2012 (5) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... icating the same in relation to the subject imports, lack of jurisdiction for the Commissioner of Customs (Preventive) in this case becomes the common ground for allowing all the three appeals, order is set aside, appeals are allowed - C/1194 & 1995/01 and C/602/01 - A/251-253/2011-WZB/C-I(CSTB) - Dated:- 7-6-2011 - SHRI P.G. CHACKO, SHRI SAHAB SINGH, JJ. Appearance: Shri Anil Balani Shri J.C. Patel Advocate Advocate for Appellants Shri Manish Mohan SDR for Respondent Per: P.G. Chacko These appeals are directed against the order passed by the Commissioner of Customs (Preventive), Mumbai in adjudication of show-cause notice dated 10.01.2000 issued by the same Commissioner. In the impugned order, the learned Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicants are not precluded from raising the objection at this stage. In this connection, the learned Counsel has relied on the Hon'ble Supreme Court's judgment in Commissioner of Sales Tax, U.P. Vs. Sarjoo Prasad Ram Kumar - [1976] 37 STC 533 (SC). Counsel has referred to the essential facts of the cited case and has claimed support from the apex Court's decision. 3. Learned SDR has opposed the jurisdictional objection being raised at this stage. According to him, such an objection should have been raised at the earliest stage i.e. at the time of replying to the show-cause notice. Objection was not raised before the adjudicating authority at any stage, nor was it raised in the present appeals. Learned SDR submits that the belated attempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material period. The Assistant Sales Tax Officer, Sector-II, after following the principles of natural justice, passed an order of assessment against the assessee, which was taken in appeal to Assistant Commissioner (Judicial), Sales Tax. Before the appellate authority, the assessee contended that the Assistant Sales Tax Officer, Sector-II had no jurisdiction to assess. That contention was upheld by the appellate authority which held that only the Assistant Sales Tax Officer, Sector-III could have assessed the assessee. Aggrieved by the decision of the appellate authority, the department preferred an appeal to the Judge (Revisions), Sales Tax, who, in turn, framed the following question of law and referred the same to the Hon'ble High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra), they can be allowed to raise the jurisdictional objection in their appeals before the Tribunal. In other words, the dictum 'An objection as to jurisdiction goes to the root of the case' operates in favour of the said parties. Their amendment applications are, therefore, liable to be allowed. It is ordered accordingly. 7. The question now arising before us is whether the additional ground raised in the appeals of M/s Nymex Traders and Shri C.D. Shah are valid and tenable? The gist of this new ground is that the Commissioner of Customs (Preventive) had no jurisdiction to issue the show-cause notice. The show-cause notice was issued primarily to demand duty on certain goods imported by M/s Nymex Traders through New Custom House, Mumbai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Customs (Imports) Mumbai, the same having been assessed and clearance for home consumption having been allowed by the proper officer on importers executing bond, undertaking the obligation of export, in our opinion, the Collector of Customs (Preventive), not being a 'proper officer' within the meaning of Section 2(34) of the Act, was not competent to issue show cause notice for re-assessment under Section 28 of the Act. Nothing has been brought on record to show that the Collector of Customs (Preventive), who had issued the show cause notices was assigned the functions under Section 28 of the Act as 'proper officer' either by the Board or the Collector/Commissioner of Customs. We are convinced that Notifications No. 250-Cus. and 251-Cus. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 83, there was no assignment of any function of the Commissioner to be discharged as 'proper officer'. 8. As we have already indicated, no evidence has been brought on record by the respondent to show that the Commissioner of Customs (Preventive) was specifically assigned the function of issuing the show-cause notice and adjudicating the same in relation to the subject imports which were made through New Custom House, Mumbai. In this scenario, the Hon'ble Supreme Court's decision in Syed Ali (supra) operates squarely in favour of the importers namely M/s Nymex Traders and Shri C.D. Shah. Penalty on Shri Bharat D. Doshi under Section 112 of the Customs Act, 1962 is consequential to the decision taken against M/s Nymex Traders and Shri C.D. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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