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TMI Blog2002 (5) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... CEGAT at Calcutta in respect of the petitioners company, which has its office at Calcutta, this Court has jurisdiction to entertain this writ petition, even on the ground of the question of territorial jurisdiction. 2.1On the question as to the maintainability that the writ petition in view of availing of the alternative remedy, the learned Counsel, Mr. A. Singhvi appearing with Mr. Goutam Mitra contended that the CEGAT had no jurisdiction to interpret the question with regard to the authority of the Joint Development Commissioner to issue certain clarification, which by reason of Section 13 of the Foreign Trade (Development Regulation) Act, 1992 (FTDR Act) is conferred upon the Director General alone. The CEGAT has no jurisdiction to entertain determination of the proposition of the FTDR Act. Therefore, this question can only be entertained and gone into by this Court. 2.2The third ground he has raised is that under Section 11A of the Excise Act, the excise duty can be recovered only for a period of 6 months from the date it became due. However, the proviso to Section 11A prescribes that it can be dated back to a period of 5 years, provided there was fraud or collusion. Rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er contended that this question of jurisdiction, which has been raised by the petitioner can very well be gone into by the CEGAT. 3.2He further contended that the petitioner is guilty of delay and laches, since he could have challenged the same as soon as the notice to show cause was issued; but he waited till it was required to deposit the demand as condition precedent for hearing of the appeal under Section 35(F) of the Excise Act. He further contended that the petitioner has raised this question before the Commissioner, which has since been gone into and can very well be thrashed out in the appeal itself. On this ground, he prays that the writ petition be dismissed. Reply of the Petitioners : 4.In reply, Mr. A. Singhvi, learned Counsel appearing for the petitioners, contended that the decision cited by Mr. Banerjee are distinguishable in view of the fact that there is an office of the petitioner situated at Calcutta and that proceeding has been transferred to CEGAT at Calcutta, therefore, the unreported decision will not apply, having regard to the facts and circumstances of this case. He further contended that the decision in Swaika Properties (supra) will also not apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bai has transferred this case to CEGAT, Calcutta within whose jurisdiction the petitioner's office is situated. It is the petitioner against whom the demand is made. The petitioner is carrying on business from its principal seat at Calcutta, though it also carries on business at Nagpur and Raipur on account of which the liability has accrued. The liability is that of the petitioner, though arising out of the two units. Thus, the said decision does not help Mr. Banerjee in the facts and circumstances of the case. Clarification by Joint Development Commissioner : 6.The question on the basis whereof the writ jurisdiction is invoked is related to two questions. The first question relates to the jurisdiction of the Joint Director under the FTDR Act issuing the clarification by reason of Section 13 of the FTDR Act. 6.1According to Mr. Singhvi, this question cannot be gone into by the Tribunal, since it relates to an interpretation of a different statute. In my view, this contention does not seem to be of any substance. CEGAT is empowered to decide the appeal. It can very well determine the implication of the particular clarification issued by any other authority. However, issue inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lating to imposition of penalty or confiscation of goods. It provides that any penalty can be imposed or the question of confiscation can be adjudged under the FTDR Act by the Director General. It can be done by such other officer as the Central Government by notification in the Official Gazette, authorizes subject to the limits specified. Application of Section 13 is confined to the imposition of penalty and adjudication or confiscation under the FTDR Act. Admittedly, this case does not involve any question that falls within Section 13 of FTDR Act. The clarifications contained in Annexure "P-3" have not been issued in exercise of the authority under Section 13. It is not an adjudication with regard to the imposition of penalty or confiscation contemplated under FTDR Act. Therefore, there is no scope of deciding any question within the scope of Section 13, so far as this case is concerned. Therefore, the contention of Mr. Singhvi is wholly misplaced. In the present case, CEGAT is not called upon to adjudicate anything within the scope of Section 13 of FTDR Act, even while interpreting the clarifications contained in Annexure "P-3". Inasmuch as, these clarifications have no nexus wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the EPZ and it cannot be utilized on the basis of any approval granted to a sister concern and that the office of the Development Commissioner did not issue any certificate for concessional rate of duties of Customs and Excise under the provisions of notification dated 4th January, 1995. This also does not purport to clarify anything except pointing out the conditions and situations with regard to the licence granted by the office of the Development Commissioner. It is not an adjudication of any liability under the FTDR Act. It has only pointed out the conditions contained in the licence. 7.4Thus, the said two letters clearly indicate that these are related to the extent of the conditions under which the licence is granted without attempting to adjudicate any dispute or the question of imposition of penalty or confiscation. Thus, it is a statement with regard to the question of licence so granted and is exercised to explain the conditions, under which the licence is granted, in terms of Section 9 of FTDR Act. Therefore, such an exercise is permissible to be undertaken by an authority, which is empowered to discharge its function under Section 9 of the FTDR Act. In Foreign T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contents of the licence, which has to be found out by the authority from the licence itself, which is within the jurisdiction of the CEGAT, viz : to find out as to whether the goods are dutiable or free being in the nature of DTA sale. The CEGAT has every jurisdiction to examine as to whether the sales are DTA sales or not and are dutiable or not in the process to examine all questions that might be incidental to the proceedings. Therefore, this contention of Mr. Singhvi is overruled. Can the case be re-opened : 8.The question of jurisdiction relating to re-opening of the case beyond 6 months under the proviso to Section 11A of the Excise Act may now be examined. As rightly contended by Mr. Singhvi, this question relates to the jurisdictional fact, namely whether this question could be raised or not. Whether the proceeding can be initiated or not. Admittedly, this was initiated by the authority outside the territorial jurisdiction of this Court, but since this question is to be gone into by CEGAT, Calcutta, therefore, this Court can invoke jurisdiction in respect thereof, provided the CEGAT, Calcutta cannot go into such question. In my view, such question can also gone into b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .C.) in order to contend that there could not be any fraud if the department had knowledge of the activity of the manufacturer. In such a case the extended period of limitation will not be applicable. Relying on this decision, he wanted to contend that the activities of the petitioner was always known to the respondent authorities, despite which the licence was being renewed from time to time and of the return which was being furnished to the respondents. But, since I have kept this question open, it is not necessary to go into the question at this stage, particularly, in view of the pendency of the appeal before CEGAT, which is supposed to decide all these questions on the basis of the facts. 8.3Here in this case, it is a question of the jurisdiction of the Commissioner as to whether it could have initiated the proceeding having regard to the proviso to Section 11A of the Excise Act. Therefore, the CEGAT is competent to go into such question. 8.4It is contended by Mr. Banerjee that the CEGAT is not subordinate to the jurisdiction of this Court. But this contention is no more a res integra, in view of the decision in L. Chandra Kumar (supra). In such circumstance, the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied on the decision in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai Others, 1998 (8) SCC 1. In this case, in certain circumstances, it was held that bar of alternative remedy shall not prevail upon the Courts to exercise its discretion. It had laid down certain proposition, where it would not operate as a bar, viz : where the writ petition seeks enforcement of any fundamental right or where there is violation of principle of natural justice or where the order of the proceedings are wholly without jurisdiction or the vires of an Act is challenged. But, in this case, it is not enforcement of a fundamental right, neither it is a question of violation of principle of natural justice. However, it has been sought to be brought within the purview of the third conditions that the proceedings are wholly without jurisdiction. However, the vires of the Act has not been challenged. In the present case, question of jurisdiction has since been raised on the ground that it does not come within the extended limitation and, therefore, the re-opening is without jurisdiction. But, this is not a clear case, which is free from any doubt. This question is dependent on determination of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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