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TMI Blog2024 (12) TMI 1156X X X X Extracts X X X X X X X X Extracts X X X X ..... n would be contrary to Article 323B of the Constitution besides being arbitrary denial of right to appeal before the highest court of the land. Reflief of redemption of goods - HELD THAT:- There are no doubt that the appellant was ineligible to import gold jewelry as baggage of person arriving in India from abroad. The appellant had not denied his intent to evade duty that was leviable from the lack of eligibility. The confiscation of goods for non-declaration under section 77 of Customs Act, 1962, implicit in passage through green channel and, thereby, empowered by section 111(l) and section 111(m) of Customs Act, 1962, is not to be faulted. There is nothing on record, other than an original finding at the first appellate stage, to suggest that a passenger may not carry gold jewelry in excess of entitlement of duty free import as long as duty liability is borne - That finding in the impugned order is without reference to any notice issued to the appellant herein; the substance of the finding, too, does not carry the authority of careful consideration of the nature and contents of the stipulation of the Reserve Bank of India (RBI). The tariff does not determine licencing restrictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive, is no less aggrieved that the appellant has deprived the Government of India, in revision jurisdiction under section 129DD of Customs Act, 1962, of considering the challenge to absolute confiscation of prohibited goods that the two lower authorities held to be in accord with legislated intent of section 125 of Customs Act, 1962. On behalf of the appellant, it was submitted that they were only concerned with fair disposal of appeal and pleaded only that the relief sought by them should not be allowed to fall between two stools merely from both authorities declining to take the trouble of deciding on their respective, and mutually exclusive, jurisdictions. 3. Strictly speaking, it should not matter a whit to either side in a dispute as to the authority that gets to dispose off a grievance; both are, for such purpose, vested with responsibility to respond by applying known law to established facts. It is for the aggrieved person to choose from available remedies and to bear the consequence including that of lack of jurisdiction; it is for the other side to advise caution on that in score. In ultimate analysis, prejudice from disposal on merit as well as jurisdiction is that of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion or order has been passed by a Collector of Customs, appeal to the Board; (b) where the decision or order has been passed by an officer of customs lower in rank than a Collector of Customs, appeal to the Appellate Collector of Customs: Provided that the Appellate Authority may, if it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months. allow it to be presented within a further period of three months in section 128 therein and, in addition to revision by the Central Board of Excise Customs (CBEC) [also referred to as Board ] under section 130 of Customs Act, 1962 on its own motion or on application of any aggrieved person, also provided for (1) The Central Government may on the application of any person aggrieved by (a) any order passed under section 128, or (b) any order passed under section 130 otherwise than on the application of any aggrieved person, or (c) any order passed on the application of any aggrieved person under section 130 where the order is of the nature referred to in either of the provisos to sub-section (1) of that section annul or modify such order. (2) An application under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, did not provision for exclusion of any part of the relevant subject from the relevant tribunal. 7. And yet, just two years into the operation of the Tribunal, section 43 of Finance Act, 1984 inserted the proviso supra to exclude jurisdiction of the Tribunal and to restore revision, which, though, was restricted to orders of Collector (Appeals) relating only to (a) any goods imported or exported as baggage, (b) short landing under section 116 of Customs Act, 1962, and (c) payment of drawback, emanating from adjudication at the level of Assistant Collector of Customs Act, 1962, with the Central Government by insertion of section 129DD of Customs Act, 1962. In effect, this was not conferment of appellate jurisdiction but alienation of appellate function of the Central Board of Excise Customs (CBEC) and the broader sweep of revision powers of the Central Government initially and, on reconsideration, was restored to the latter in the specified circumstances. Nothing changed except the manner and structure through which appellate remedy was enabled and, yet, must have been conceptually revolutionary enough for revisit of the specified exclusions supra as not warranting the rigours of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, some aspect of baggage, as do the other two exclusions, is exception from the constitutionally mandated inalienability. It would, thus, be of value to scrutinize the other two. 9. The reasons for restoration of appeals pertaining to payment of drawback and short landing penalty in the revision jurisdiction may throw some light on the thread of legislative intent in lateral substitution of the Tribunal for appellate remedies initially and the exclusion shortly thereafter. The barebones of a taxing statute are the enunciation of taxable event , manifested as the charging provision , and the taxable measure , manifested as the valuation provision , with consequent assessment, enabled by assessment provision , and refund provision , for return of duty collected without authority of law, thrown in to complete the circle; all else is machinery provisioning to ensure that processes are geared to directing goods to appropriate custom station for collection of appropriate duties at the appropriate time and to deter attempts at evading duty or escaping from prohibitions on import of export. In the midst of all this, are three externalities: customs brokers, payment of drawback and short l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of the new nation. This contractual obligation of the State to exporters, statutorily ensconced, found its way into the customs laws of countries since then in acknowledgement of territorial bounds and not to be denied save when goods have not left the country or the elements of sale in the course of international trade was incomplete. Thus it is that the expression deployed in proviso to section 129A of Customs Act, 1962 is payment of drawback and not sanction of drawback laying the boundaries of the revision retained after the incorporation of the new appellate regime. Thus it is that, largely, drawback is paid under rule 15 of Customs and Central Excise Duties Drawback Rules, 2017 in accordance with the schedule of rates prepared, and notified, by the Central Government under the authority of rule 3 therein. Thus it is also that the payment of drawback and recovery is governed by these Rules and withholding drawback, other than in circumstances supra, can only be in consequence of re-determination of value which is revisit of clearance accorded under section 51 of Customs Act, 1962 and by calling into question the assessment under section 17 of Customs Act with consequence a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al streams, with one extending from beyond adjudication and first appeal or directly from adjudication, as the case maybe, through the High Courts, or in specified cases directly, to the Supreme Court are dealt with through the Tribunal while the other, like a spur, branches from appellate authority below the Tribunal to the Government of India away from adversarial representation. The latter specifically originates from adjudication below the level of Commissioner but it is not that every decision emanating therefrom strays from the mainline, to continue the railway analogy, for there are some within the exclusive jurisdiction of Deputy/Assistant Commissioner, such as sanction of refund, that, yet, travel only through the Tribunal; it is obviously not the origin of adjudication that determines shunting to the spur and nor has it aught to do with monetary ceiling of adjudicatory competence. This dichotomy was not always so for between 1962 and 1984, remedy lay with one or the other and may well have attained its present status more as convenience or even from inconvenience. Monetary threshold in the revision jurisdiction being limited notwithstanding, the single delegate of Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entanglements with tax-payers and, thus so, even as the other tax burden direct taxes has statutorily, and long before the prevailing enactment, accepted the efficacy of an appellate structure untouched. With this announcement, the appellate remedy was not only freed from the executive clutch but extended to incorporate the constitutional courts in the scheme of dispute resolution. The Central Board of Excise Customs (CBEC) was divested off its empowerment to dispose appeals and both founts of adjudicatory determination were subject to appellate oversight, directly and once removed, of the Tribunal assuring not only true separation of tax administration from dispute resolution but also ensuring that the optics of justice delivery bespoke maturation. And yet, within a short span of existence of the Tribunal, legislation, and without much disturbance of the design - by restricting it to three verticals of tax administration, viz., baggage, drawback and short-landing, presupposing common thread beyond that of routing through Commissioner of Customs (Appeals) - was enacted to revive the revision jurisdiction of Government of India. Obviously, there was compelling logic that overwhelmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate for revision jurisdiction. It may, thus, be posited that escape from merit review by the highest court in the land that is the final authority in matters of rate of duty and value , and contrary to the objectives of appellate reform in Customs Act, 1962, marks the divide separating appellate jurisdiction of the Tribunal as subject to appellate superintendence of the Hon ble Supreme Court - from the revision jurisdiction of the Central Government. 15. Both shortlanding , as it stands, and payment of drawback , as constrained, are excluded from coverage intended by Article 323B of Constitution for establishing the Tribunal and vesting inalienable jurisdiction which was re-visited for excluding that which was alienable as elaborated supra. Baggage, however, is not devoid, though even if not under section 17 of Customs Act, 1962 of assessment and, yet, is one of the alienable trio and the very same principle should offer guidance in a demarcation deliberately intended by law. The proposition of Learned Authorized Representative would find approval with us if the alternative [chapter XI of Customs Act, 1962], and exclusive, provision for assessment, in section 77 to section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Customs; surely, Learned Authorized Representative would be hard put to suggest that absence of such distinguishment in the present instance suffices to challenge the competence of the Tribunal to dispose off the appeal. 17. We may, thus, hold that assessment is the primary determinant for clearance of goods under customs law and, consequently, inalienable from the appellate jurisdiction of the Tribunal. Even the excluded jurisdiction, under proviso to section 129A of Customs Act, 1962, other than shortlanding , operates only to the extent of not being a consequence of assessment or re-assessment, where payment of drawback is concerned, under section 17 or section 18 of Customs Act, 1962 and, even if assessment is concerned, as in baggage , only to the extent that the original authority has ordered by recourse to empowerment in Rules framed under the aegis of section 81 of Customs Act, 1962. Any other interpretation of the amendment effected to Customs Act, 1962 in 1984 for restoration of revision jurisdiction would be contrary to Article 323B of the Constitution besides being arbitrary denial of right to appeal before the highest court of the land. 18. Now we can turn to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50,000, without payment of duty. It was further held by the original authority that recourse to non-declaration was available only to passenger who are not carrying dutiable goods and not beyond that permitted without payment of duty. That, however, did not restrain the first appellate authority from taking recourse to restriction imposed by the Reserve Bank of India (RBI) [circular no. 25 dated 14th August 2013 RBI/2013-14/187, AP (DIR Series)] on import of gold only by specified agency which, too, added padding for being prohibited to be imported. And having done so, affirmed the discretionary empowerment vested by section 125 of Customs Act, 1962 in the confiscating authority to deny redemption of goods. 21. We entertain no doubt that the appellant was ineligible to import gold jewelry as baggage of person arriving in India from abroad. The appellant had not denied his intent to evade duty that was leviable from the lack of eligibility. The confiscation of goods for non-declaration under section 77 of Customs Act, 1962, implicit in passage through green channel and, thereby, empowered by section 111(l) and section 111(m) of Customs Act, 1962, is not to be faulted. There is noth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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