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TMI Blog2000 (6) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... ace and that the documents relating to such exports were manipulated and forged. It further alleged that S.C. Gupta and R.K. Singh, who had been functioning as Superintendent and Inspector of Customs at Tikonia through which these goods had been exported in collusion with the others certified falsely that these goods had been exported. It was alleged in the notice that these acts had been done with a view to availing of benefit of exemption under Notification 203/92 in collusion with S.C. Gupta and R.K. Singh, the officers. The notification in essence permits imports of material utilised towards manufacture of goods exported under the duty exemption entitlement certificates scheme (DEEC scheme for short) or material imported as replenishment of other materials that was used. The notice demanded duty on goods which had been imported which had alleged to have been imported and cleared without payment of duty by application of this notification on the ground that the conditions contained in the notification that the resultant product must be exported had not been fulfilled. In addition it proposed confiscation of these goods and penalties on the persons other than Gupta and Singh unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner and the Commissioner irrespective of recovery of duty on identical goods. The Commissioner's finding to this effect is therefore neither illegal nor improper. It cannot be disputed that the Commissioner had the power in terms of Section 5(2) of the Customs Act, 1962 to adjudicate on this notice which have been made answerable to Assistant Commissioner subordinate to him. It does not, however, follow from this that being not having done so, and his refusal to do so implicit in his decision not to adjudicate on those cases, amounts to an illegality or impropriety which can be challenged before this Tribunal. There is nothing in law that requires the Commissioner or other officers of customs to take over such proceedings pending for adjudication before any subordinate officer in any set of circumstances. The provisions of Section 5(2) of the Act are obviously intended to provide a measure of administrative inconvenience (sic) in order to avoid multiplicity of litigation or for action to ensure that work does not suffer on account of a subordinate officer not being available. The refusal by the Commissioner to exercise or non-exercise any of these powers under Section 5(2) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment of the Supreme Court in Harbanslal v. Collector - 1993 (67) E.L.T. 20 does not appears to have any relevance. The judgment was not all concerned with the proceedings for recovery of duty on the one hand and confiscation and penalty on the other should be segregated. The finding in that judgment that goods which are not physically available are liable for confiscation again does not have any bearing upon this issue. 8.The Commissioner has said that he could not adjudicate in respect of imports against three licences for the reason that they were provisionally assessed. He had relied upon the judgment of the Bombay High Court in M/s. Godrej Boyce Manufacturing Co. - 1989 (43) E.L.T. 225. This being questioned on the ground that this reliance is misplaced as the decision related to assessment under Central Excise Act. 9.As the advocate for the respondent points out that the observations of the Bombay High Court will equally apply to a case of provisional assessment under the Customs Act. The relevant date, 6 months or 5 years (in specified cases) within which a notice under Section 28 can be raised for non-levy or short-levy is defined in the explanation under that sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has relied upon the Circular No. 2/92 dated 12-3-1992 of the Ministry of Finance which he reproduced in his order at pages 42 and 43 and concluded that till the such time as prescribed in that circular is not complied with demand for duty cannot be issued. This is questioned on the ground that the Supreme Court has confirmed in its judgment in Sheshank Sea Foods Pvt. Ltd. v. U.O.I. - 1996 (88) E.L.T. 626 that the jurisdiction of the customs authorities to take action where an exemption is violated is not precluded by the fact that the licensing authority has jurisdiction to investigate violations of the conditions of the import licences. 13.No one can deny that jurisdiction under the law for customs authorities to investigate and issue demands where such investigation justifies for wrong availment of notification exists (sic). The Commissioner himself does not deny any such jurisdiction. All that he states is that "reference is required to be made to the licensing authority and only thereafter the demand can be issued". A reading of the circular in question shows that it contemplates that discharge of the bond will be made by the licensing authorities without waiting for no objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been cleared on payment of duty is sound. This could happen either at the option of the importer who may elect not to avail of the notification, or by the assessing officer declining to extend the benefit of notification. In either of these two eventualities there would be no short-levy on the ground of incorrect application of the notification. 16.A similar reasoning would also hold true with regard to some other bills of entries, referred to in paragraph (1b) at page 15 of the order in regard to which there were no 'ADF' numbers given. These letters stand for the words 'Assessed Duty Free'. Any bill of entry which is cleared by the customs for home consumption must bear either the cash number or ADF number. The cash number shows the entry number made in the cash book in which particulars of the duty paid on the goods are recorded. Whereas the duty is paid for reason of exemption or there have been at nil duty ADF number that is given. In both cases these numbers are given so as to identify with the bill of entry. The Collector's conclusion that if the ADF number has been given it is doubtful that the goods have been cleared without payment of duty, with the inference it has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court UOI v. Ram Narayan Bishwanath - 1997 (96) E.L.T. 224. 20.The fact that the jurisdiction of the Commissioner of Customs in practice is territorial has to be accepted. Notifications issued under section 4 of the Customs Act declares the jurisdiction of Commissioners and other officers of the Customs with regard to territorial jurisdiction. The cited judgment of the Supreme Court refers to territorial-cum-functional jurisdiction of the Commissioner of Customs. The Supreme Court judgment cited above and the judgment of the Calcutta High Court in Informative Software Another v. CCP - 1997 (23) RLT 172 holding that Commissioner (Preventive) in such cases has no jurisdiction over matters which are rightly is the purview of Commissioner of Customs are significant. The adjudication with regard to export, which took place to Tikonia, would normally be dealt by the officers having territorial jurisdiction over that place. It certainly would not be done by the Commissioner of Customs, Mumbai or anyone else unless they were conferred jurisdiction by the Board by notification under Section 4. By such an act, the Board in effect changes the existing territorial nature of the jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24.The grounds in the appeal leading to the final conclusion that the exports have not taken place are scattered in different parts of the appeal. It is first contended that the investigating officers' personal inspection of the terrain through which the exported goods would have to be passed, has ruled out the possibility of the large quantities of goods passing through an area which was not motorable. The statement of M.P. Singh, the Ghat Daroga of Kauralia Ghat submits this view. The Customs and Commerce departments of the Nepal Government has confirmed that no such goods have been received in their country. The notified parties in Nepal are non-existent. The sales tax department in Delhi and in Ghaziabad in U.P. had said that no goods, allegedly manufactured by the supporting manufactures are passed through the checkpoints. Yudhishtir Kumar the person who had affirmed an affidavit to say transport of the goods to Tikonia was not available at the address given by him. 25.The reports of the personal visit of the officers of the Directorate of Revenue Intelligence of this area have not been furnished and were not part to the notice to show cause. It is therefore neither possibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of which the goods could have passed on their way to out of Delhi towards Nepal, and that therefore the absence of movement of goods being reduced at a single check post cannot lead to the conclusion that goods have not been transported to at all. The letter of the Commissioner of Sales Tax clarified that consignments on which no tax is payable are not examined at the sales tax check post, from which the Commissioner infers, that they need not be entered in the sales tax check post. There is no effective attempt in the appeal to say why the Commissioner's conclusion in this regard is faulty, but merely a reiteration of the claim that the sales tax records corroborates the department's view. This in effect means that the department is not able to say why the Commissioner's view cannot be accepted. As we have noted there is not even an attempt to say that his view is wrong. That being the case his conclusion with regard to these aspects cannot be interfered with. 29.M.P. Singh of Kauriala Ghat was questioned by the DRI. In his statement recorded before them, he has stated that no vehicle carrying goods shown to have been exported passed by that route which required crossing the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Nepal according to the report of the Nepal Customs, brings upon to the next point. The Commissioner has said that the fact of such non-entry in the Nepal Customs record itself does not disprove the export. He cites various reasons as to why these details would not be entered in the Nepal Customs records. We find this explanation difficult to accept. Why such a large consignment like this, which when they entered Nepal, would have gone through the Nepal Customs check post, not far from Indian check post could not be entered into the Nepal Custom House is difficult to explain. It is not correct to say that the parties in Nepal were bogus or non-existent. The cited letter dated 18th February, 1992 of the Department of Commerce, Government of Nepal to the First Secretary, Indian Embassy, relied upon by the department says that a private firm can not function without registering with the Department of Commerce, that the registration of the 6 firms mentioned in the First Secretary's letter (evidently the consignees in Nepal) could not be traced, and asked for further particulars. It is the contention of Mr. Asthana, that registration was only a procedural formality, the absence of whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was subject matter and which is relied upon by the investigating agency so far as the claim is concerned falls to the grounds." 33.The contention on behalf of the respondents is that this decision has not been appealed and the Union of India is bound by the stand it has taken in the affidavit filed by Srivasatava, Superintendent are not successfully rebuted by the departmental representative. His contention was that the prosecution related to criminal proceedings in which standard of proof is higher than of the present case. That is no doubt, true. However, the words of the Superintendent which we had extracted above indicate a definite conclusion that exports had taken place. Whether exports had taken place or not is a matter in which there could not be very different standard of proof. The departmental representative was unable to show that this order of the High Court had been appealed or has been set aside. Nor was he able to say that affidavit had not been filed on behalf of the Union of India. That it is required to be verified is no answer. The affidavit is tendered before us by the advocate and we see no reason not to accept it when the High Court has recorded it having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c oxide by Sackville Inc. indicate through Delhi to Nepal in June and September, 1993 and it further indicates that Ms. Hera Bruener, the director of the business centre declined to divulge any further information in the interest of her client. This letter thus indicates the existence of the companies and at least of some shipments. We therefore do not find sufficient material to interfere with the Commissioner's finding in this regard. 36.The appeal and the arguments of the departmental representative emphasised that the advance licences issued under the DEEC scheme through the respondent firms have subsequently been cancelled under the provisions of the relevant law by the licensing authority and penalties had been imposed on these firms to emphasise that the exports in fact did not take place. They also challenge the reliance by the judgment of the Supreme Court in East India Commercial Corporation v. Union of India - 1983 (13) E.L.T. 1342. The departmental representative questions on the ground that this would only apply to confiscation of goods and issues such as non-repatriation of goods of export proceeds could not be affected by application of this judgment. Advocate for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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