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TMI Blog2023 (1) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... PETITION NO. 2480 OF 2018 - - - Dated:- 16-1-2023 - NITIN JAMDAR AND ABHAY AHUJA, JJ. For the Petitioners : Mr. Sujay Kantawala a/w. Mr. Prasad Borkar, Advocate. For the Respondents : Mr. Pradeep Jetly, Senior Advocate a/w. Ms. Sangeeta Yadav, Advocate. P.C. Heard the learned Counsel for the parties. 2. The Petitioner has prayed for the following relief : (b) Pending hearing and final disposal of this Petition, the Hon ble Court may be pleased to stay the operation of the Impugned Order dated 09.05.2017 and grant Injunction restraining the Respondents, their Agents, Servants and Subordinates from acting and/or taking any action of any nature whatsoever, pursuant to or in furtherance of the Impugned order. 3. A show cause notice was issued to the Petitioner on the following allegations which are stated in the impugned order as under : Specific intelligence received from the Directorate of Revenue Intelligence, Kolkata Zonal Unit indicated that two passengers namely Shri Sitram Karel and Shri Kailash Verma would be travelling from Kolkata to Mumbai by Indigo Flight No. 6E-318 and Jet Airways Flight No. 9W-0618 respectively on 20.01.2016 and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) Gaba B8 handset bearing IMEINo.911200350874289 with SIM card no.8697324191. vi) Samsung duos handset bearing IMEI No.352971076328257 with SIM card no.8335855285. vii) Boarding pass for seat no.3C, dated 20.01.2016for flight no.6E 318 Indigo Airlines. viii) Baggage tag no.0312075015 ix) Employment VISA no.2333908/201/2015 issued by the UAE government in the name of Mr. Sitaram Karel, son of Shri Raj Kumar Karel on 10 Aug 2015 valid upto 09th Oct 2015. x) Ticket issued by Indigo Airlines for Kolkata Mumbai sector bearing PNR Z7DTVF, date of booking 17th Jan 2016. xi) Return ticket no. ETKT 589 9795837910 by Jet Airways flight no.9W 623 from Mumbai to Kolkata on 20 January 2016; xii) Delivery Challan dated 29/12/2015 issued by M/s. Micro Ultrasonic, Ghatkopar, Mumbai. 2.2 The above six gold bars weighing six Kg and valued at Rs.1,58,58,000/- were seized along with the other articles / documents mentioned above, as per panchnama dated 20.01.2016, under the reasonable belief that the said gold bars were smuggled into India and hence liable for confiscation under the provisions of the Customs Act, 1962. In the course of the seizure it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing IMEI No. 355629073554856 with SIM card no.8697326683 vii) Boarding pass for seat no.16E, dated 20.01.2016for flight no.9W 0618 Jet Airways viii) Baggage tag no.35899W069088P 3.2 The above six gold bars weighing six Kg and valued at Rs.1,58,58,000/- were seized along with the other articles / documents mentioned above, as per panchnama dated 20.01.2016, under the reasonable belief that the said gold bars were smuggled into India and hence liable for confiscation under the provisions of the Customs Act, 1962. In the course of the seizure it was noticed that the said six gold bars were not of uniform texture and appeared to be melted so as to erase any foreign markings. 4. According to the Respondents, the Petitioner was part of a larger network engaged in illegal smuggling of goods. By the impugned order, penalty was imposed on Sanjay Kulthia, Lalit Kulthia, Anirudh Verma, Uttam Malakar, Subal Addhya, Kanhaiyalal Karel, Samir Jain, M/s. Safari Bullions Pvt. Ltd., Sitaram Karel, Kailash Verma, Rajat, Shyamal, Jeet and Manoj. The learned Counsel for the Respondents, at the outset, raised preliminary objection of maintainability of the Petition on the ground of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 issued by the Central Board of Excise and Customs being a Master Circular on show-cause notice, adjudication and recovery proceedings. It is submitted that the Additional Commissioner in terms of the Circular cannot adjudicate issues when the demand is in excess of Rs. 2 crores. In particular he invited our attention to paragraph nos. 10 and 11.1 of the master circular which reads as under :- 10. Adjudication :- Officers of Central Excise have been vested with powers under Section 33A of Central Excise Act, 1944 to adjudicate the Show Cause Notice issued to the noticees and answerable to the officers. They, in their capacity is adjudicating officers act as quasi-judicial officers. Further as per Section 2(a) Adjudicating Authority means any authority competent to pass any order or decision under this Act, but does not include the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), Commissioner of Central Excise (Appeals) or Appellate Tribunal. 11.1 Monetary Limits :- Board has revised monetary limits for adjudication on 29.09.2016. The revised monetary limits and other instructions in relation to adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order, including the non-granting of cross-examination. This to support his contention that the impugned order would be required to be interfered with by this Court in its writ jurisdiction. 7. We are of the view that there is an efficacious alternative remedy available from the impugned order dated 9th May, 2017 to the Commissioner of Customs (Appeals). The petitioner's grievance with regard to the merits of the impugned order including non-granting of cross-examination would be considered by the Commissioner of (Appeals) and adjudicated upon. It does not warrant interference of this Court in its extraordinary jurisdiction. However, while we dismiss the petitions, we make it clear that in case the petitioner does file an appeal before the Commissioner (Appeals) within a period of three weeks from today, the Commissioner (Appeals) would entertain the appeal on its own merits as the time spent in prosecuting these petitions before this Court has to be excluded. This is on the basis of the Apex Court decision in M.P. Steel Corporation Vs. Commissioner of Customs, Service Tax 319 ELT 573. 8. Needless to state that the petitioners would require to satisfy the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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