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TMI Blog2019 (3) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 27 has to come into play - Stage clearance of warehoused goods onwards is a function under Customs Act, the proper Officer is definitely the Officer of Customs. The situation stands clarified vide Circular No.126 dated 12.12.1995 stands modified vide Circular No.27 of 10.05.1996. It has been clarified that there is no overlapping of jurisdiction but a clear cut demarcation of function to be performed by Central Excise Commissionerate and Customs formation. Since in the present case, the goods were intercepted at Mumbai Customs area. They had already reached into the jurisdiction of Customs Commissionerate. The Commissioner, Customs was the competent/ proper Officer to issue the impugned show cause notice - The issue of jurisdiction is therefore decided against the appellant. Time limitation - Held that:- Whether the show cause notice dated 19.03.1999 is within the period of 6 months in terms of Section 124 of the Customs Act? - Held that:- The detention is a case prior of acquiring convection that seizure is required and hence is different from seizure. As per Section 124 of Customs Act, period of 6 months has to reckon from the date of seizure - the show cause notice i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allen under the 100% EOU Scheme and the container of such tapes bearing No. CRXU 2689406 which had already been dispatched to Bombay on 12.09.1998. The Officers of Customs (Preventive) Branch, New Delhi reached Bombay in presence of Mumbai Port Trust got examined the said container on 30th September 1998. After breaking open four seals (intact) 640 cartons were recovered. 60 were randomly selected and examined. Each of those sample was found to contain 200 spools of video magnetic tapes packed in 46 (each set of 5 spools) and to have 850 feet tape. The Customs Officers drew samples from 12 cartons (five spools from each carton) and took the shipping bill No.1032006 dated 07.09.1998 covering the above consignment into their possession vide Panchnama dated 30.09.1998 drawn on the spot. It is after subsequent investigation in the form of searches and recording the statement of all concerned that the impugned goods were seized on 19th November, 1998 and a show cause notice under Section 124 of Customs Act, bearing No.5606 dated 19.03.1999 was served upon the appellant calling him to explain as to why the seized goods i.e. 630 cartons containing ₹ 1,26,000/- pieces of video magnet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence, the Commissioner, Customs had no authority to issue the show cause notice. The order under challenge has failed to consider this aspect, despite the matter being remanded time and again. It is impressed upon that the customs authority do not qualify to be called as, proper officer , as required under the statute, to issue the notice specially when let-export order was issued by Central Excise Officer. It is further submitted that the goods were detained on 19.09.1998 at Mumbai. The show cause notice issued on 19.03.1999 and served on 28.03.1999 was beyond the limitation as the period had to reckon from the date of detention itself but the adjudicating authority has committed an error while distinguishing detention from seizure. The ld. Counsel has relied upon Ferro Alloys Corporation Ltd. Vs. Collector of Appeals, Bhubaneswar 1995 (77) ELT 310 (L.B.) and on Pharma Chemicals reported in 2005 (181) ELT 339 (S.C.). It is also submitted that no demand of duty can be ordered without issuance of SCN. Reliance is placed upon: CC Calcutta Vs. Tin Plate Co. Of India Ltd. 1996 (87) E.L.T. 589 (S.C.). Raju Fabrics Vs. CC, Ahmedabad 2004 (166) E.L.T. 468 (T) N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd were examined on 30.09.1998. It is after this examination that the goods were seized on 19.11.1998. Resultantly, the show cause notice as issued on 27.03.1999 is well within the period of 6 months. Limitation issue has rightly been adjudicated against the appellant by the order under challenge. 4.2 With respect to the merits of the case, it is submitted that the proprietor of appellant Mr. Rakesh Kumar Bhagat himself vide his voluntary statement dated 05.10.1998 admitting entire incrimination against him confessing that the video tapes which were imported by him vide bill of entry No.111376 dated 09.10.1997 were sold by him in the local market in India. He also admitted for purchasing old and used video cassettes from the local market and export the same packed in 630 cartons vide shipping bill No.1032006 dated 07.09.1998. There is no retraction of this admission which otherwise is the best evidence against the appellant, except Mr. Bhagat s Counsel letter dated 23.11.1998. It is impressed upon that said letter has rightly been ignored by the adjudicating authority while confirming the confiscation, appropriation of duty and imposing the penalty. It is further submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usion at the Customs because thereafter the goods actually leave the Indian Territory. Notification 27 dated 07.07.1997 as impressed upon by the Department is perused vide entry No.7 of the said Notification Commissioner of Customs, Delhi has been declared as the proper officer to carry out Customs Procedure. Thus, the moment the manufactured goods enter the precincts of Customs Commissionerate they have to be dealt with by them and Notification No. 27 has to come into play. This stands clarified from Section 69 of the Customs Act, which speaks about clearance of warehoused goods for export, Section 2 (34) of the Customs Act define proper officer in relation to any functions to be performed under this Act to mean the officer of Customs. Stage clearance of warehoused goods onwards is a function under Customs Act, the proper Officer is definitely the Officer of Customs. The situation stands clarified vide Circular No.126 dated 12.12.1995 stands modified vide Circular No.27 of 10.05.1996. It has been clarified that there is no overlapping of jurisdiction but a clear cut demarcation of function to be performed by Central Excise Commissionerate and Customs formation. Since in the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immediate effect without any formal procedure to be followed. But in case those documents are not sufficient to satisfy the objection raised by the Competent Officer, it is at this stage that the control of goods shall be taken by the Department and loss of complete domain over the goods and the technical order of the competent authority about something called as seizure is announced. 6.2.3 This distinction is sufficient for us to hold that the detention is a case prior of acquiring convection that seizure is required and hence is different from seizure. As per Section 124 of Customs Act, period of 6 months has to reckon from the date of seizure. Resultantly, I am of the opinion that the show cause notice is well within the limitation period. In view of above discussion and the quoted law, the case law as relied upon by the appellant is not applicable. 7. Now coming to the merits of the case, it is impressed upon by the appellant that the statement of Mr. Rakesh Kumar Bhagat dated 05.10.1998 as is relied upon by the adjudicating authority to confirm the demand and impose the penalty was retracted vide letter dated 23.11.1998, since it amounts to withdrawal of admission, if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lying upon the confessional statement of the proprietor of the appellant for confirming the impugned demand. 9. Finally coming to the grievance of the appellant about the test report as prepared by Doordarshan about the impugned samples, I am of the opinion that to test the veracity of the examiner thereof, the appellant was granted the opportunity of cross-examination. Perusal thereof shows that the test report mentioned the initials AKM i.e. of Mr. Anil Kumar Mangli, who was Station Engineer, Doordarshan Kendra, Delhi and was competent to conduct the impugned test. 10. It was admitted by the witness that Doordarshan Kendra had tape recording maintenance unit and all those tests were carried out by the said unit. With respect to no use of testing equipment it was deposed that the physical condition of video tapes were so bad that no such equipment was required. From the physical appearance itself, the tape had scratches and wrinkles on the edges i.e., the condition was such as no new tape could have. Further deposed that the test clarified that the tapes have erased characteristics as such no further elaboration was required to hold that the tapes of the samples recovered by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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