MEENAKSHI APPARELS PVT. LTD. Vs. COMMISSIONER OF CUSTOM

JUDGEMENT

(1.) These two appeals are preferred by the two Assessees, challenging the order of the Appellate Tribunal, which has upheld the order of the Commissioner, who has passed the impugned order-in-original as an Adjudicating Authority.

(2.) The Assessees exported goods under claim for draw back. The as-sessee in CSTA No. 4/2007 received a sum of Rs. 3,54,621/- as draw back, whereas the Assessee in CSTA No. 5/2007 received an amount of Rs. 4,58,708/-as draw back. DRI investigations revealed that the Assessees had not received the export proceeds within the period allowed. Therefore, show cause notices were issued under Rule 16/Rule 16-A of the Customs and Central Excise Draw Back Rules, 1995, (for short hereinafter referred to as the "Rules"), for recovery of the draw back amounts. Penalties under Section 117 of the Customs Act, 1962 (for short hereinafter referred to as the "Act") were also proposed. The Commissioner of Customs passed the impugned orders for recovery of the draw back amounts. However, he dropped the penal proceedings against the Assessees. Challenging the said orders, the Assessees preferred appeals before the Tribunal. They contended, though initiation of proceedings and issue of show cause notices by the Commissioner for Customs is proper, he had no jurisdiction to adjudicate the dispute in question as that is exclusively vested with the Assistant Commissioner of Customs under Rule 16/Rule 16-A of the Rules. They also challenged the impugned order, directing recovery of the draw back amounts on merits. The Tribunal, after considering the various provisions of the Act, the Notifications issued and also taking note of the Rules held, by a Notification dated 7th March 2002 in No. 17/2002, the Directorate of Revenue Intelligence (D.R.I) Officers are appointed as Customs Officers and therefore, by virtue of Section 5(2) of the Act, a superior Customs Officer has the power to discharge the duties conferred or imposed under the Act on any Officer of the Customs, who is subordinate to him and therefore, the Commissioner of Customs had the jurisdiction to investigate the dispute regarding duty draw back also and therefore, they held the question of jurisdiction in favour of the Revenue and against the Assessees. They also held that there is absolutely no merit in the claim of the Assessees is concerned and therefore on merits also, the appeals came to be dismissed. Aggrieved by the same, the Assessees are before this Court in these two appeals.

(3.) Learned Counsel for the Assessees contends, though the Notification conferred powers by virtue of Sub-section (1) of Section 4 of the Act to appoint the Director of Revenue Intelligence as the Commissioner of Customs and authorises him to investigate the matter by issuing show cause notice, that Notification cannot be read as conferring power on him to adjudicate the dispute. Adjudication of dispute should be in accordance with Rule 16/Rule 16-A of the Rules, which confer powers only on the Assistant Commissioner of Customs or the Deputy Commissioner of Customs as the case may be, and therefore, the order passed by the Commissioner of Customs is one without Jurisdiction and liable to be set aside. In support of his contention, he also relied on a circular dated 15th February 1999, issued clarifying the circular No. 4/1999, where it is stated, though the Directorate of Revenue Intelligence Officers are empowered to undertake investigation on cases detected by them and to issue show cause notices and to complete investigations, the adjudication has to be done by the concerned jurisdictional Additional Commissioners, Deputy Commissioners or Assistant Commissioners of Customs, as the case may be and therefore, he submitted that the adjudication done by the Commissioner, in the light of the aforesaid circular is one without jurisdiction. It was also contended, the dispute regarding duty draw back could not have been adjudicated by the Tribunal as no appeal lies against the same before the Tribunal, as is clear from the provision to Section 129-A of the Act. For the aforesaid reasons, he wants the impugned orders to be set aside.