9911796707
TMI Blog2000 (7) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. The respondent filed an appeal against the order-in-original passed by the Commissioner of Customs Central Excise, Ahmedabad with the CEGAT (WRB), Mumbai. The appeal was rejected. Being aggrieved by the said order the respondent filed a writ petition before the Honourable High Court of Gujarat who vide their order dated 10-7-1998 remanded the case to the CEGAT with the direction to consider the release of the ornaments in terms of Section 125 of the Customs Act, 1962 on the reason that the category of the goods (prohibited or not) was not considered by the Tribunal. Thereupon the Tribunal vide Order No. C-II/1313/99/WRB, dated 17-5-1999 held that the gold ornaments totally valued at Rs. 6,89,881/- be cleared on fine equivalent to the amount of duty. The respondent vide letter dated 31-5-1999 requested the Assistant Commissioner of Customs, Ahmedabad Airport to assess the duty and intimate the quantum of duty as well as redemption fine. In response to his letter, the said Assistant Commissioner intimated vide dated 22-6-1999 the amount of duties and redemption fine payable in the light of the CEGAT order dated 17-5-1999. Being not satisfied with the intimation/clarification t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1962 provided for the owner of any baggage to make a declaration of its contents for purpose of clearing it and no date or specific time is prescribed under 77 ibid for filing a baggage declaration, but the underlying principle of determination of rate of duty is that the rate in force when a document, be it a Bill of Entry or a Baggage declaration is filed, shall be the rate applicable for assessment of duty of such goods. In fine he submitted that the duty determined by the Commissioner (Appeals) is therefore, perfectly legal and valid though one may disagree with the reasoning given by him; however, reasoning or ground given by an appellate authority may not be very much material if the final order and the final determination is valid and legal as the reasoning and grounds could be faulted only when the final determination and order were illegal. 6.Govt. has considered the rival contentions. It observes that the following points deserve consideration : whether the Revisionary authority has jurisdiction to decide this application from the department; whether the declaration can be made subsequently also in terms of Section 77 of the Customs Act, 1962; whether the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question whether a tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on these facts, but upon their nature and it is determinable at the commencement, not at the conclusion of the enquiry." Applying the ratio of the Apex Court's above judgment to the present case and the facts obtaining as detailed above Govt. is of the view that it has jurisdiction to entertain the Revision Application from the Commissioner in terms of the provisions of Section 129DD of the Customs Act, 1962. In V.P. Hameed's case the appeal was taken up for decision by the CEGAT as the order passed by the Addl. Collector at the time was appealable before the Tribunal. Even in the present case if the respondent felt that the order of the Assistant Commissioner was not issued by the rightful authority, he ought to have raised it before the Commissioner who had passed the original order, instead of going in appeal before the Commissioner (A). However, it is observed that the respondents themselves had shut the door by writing to the Assistant Commissioner of Customs for intimating the quantum of duty and fine. Hence ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tariff valuation, if any, applicable to baggage shall be the rate and valuation in force on the date on which a declaration is made in respect of such baggage under Section 77". It is not disputed that the respondent did not declare the impugned diamond studded ornaments hence it amounts to non-declaration. As contended by the ld. Advocate he cannot make another Baggage declaration on 31-5-1999. In the present case the rate applicable to baggage under Tariff heading 98.03 of the Customs Tariff on the date of import by the respondent (i.e. 9-1-1992) was 300% ad valorem with effective rate of 205% ad valorem as per Notification No. 136/90-Cus., dated 20-3-1990 plus Auxiliary duty at 50% ad valorem in terms of Finance Act, 1991 (18 of 1991). The concessional rate of duty prescribed subsequently for the clearance of gold including gold ornaments (but excluding ornaments studded with stones or pearls) for eligible passengers under the liberalized policy came into effect vide Notification No. 117/92-Cus., dated 1-3-1992. In the mentioned case (V.P. Hameed) the passengers involved therein came on 30-3-1992, they had stayed abroad for more than 6 months, what they imported was gold bars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccept the suggestion of Shri Chatterjee that the proceedings are to be remitted back to the Commissioner. The reason is that the guideline as to the quantum of fine is available from the citation made before us. We find in the case of V.P. Hameed, the quantum of duty payable for the confiscated goods was used to determine the quantum of fine for redemption which was made equivalent to the duty paid. In our opinion, the same guideline should be followed. We, therefore hold that the gold ornaments totally valued at Rs. 6,89,881/- be cleared on payment of duty and on fine equivalent to the amount of duty. The Collector's order is modified to this extent only." 9.3However the Honourable Tribunal while determining the fine appears to have erred in applying the cited "V.P. Hameed" case which is quite distinguishable from the present case as elaborated in para 7.3 supra. In the cited case the Tribunal had fixed the redemption fine at Rs. 2 lakhs which happened to be approximately equal to the duty of Customs. It also appears that while considering the quantum of fine, the duty applicable on the date the goods were imported (but not declared) vis-à-vis the cap prescribed in the proviso t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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