ABDUL SATHAR Vs. UNION OF INDIA

JUDGEMENT

(1.) RULE. Rule returnable forthwith. By consent of the parties, the petition is taken up for final hearing.

(2.) THE petitioners who arrived by Emirates flight from Dubai at Chhatrapati Shivaji International Airport, Sahar, Mumbai on February 9, 2001 was found to carry 200 pieces of foreign mark gold in his baggage valued at 1. 02 crores in the local market. The said gold was concealed in cigarette packets contained in his baggage and the petitioner wanted to clear the same clandestinely without declaring it. The said goods were seized and in the statement recorded under section 108 of the Customs Act, the petitioner admitted his complicity in the smuggling of the seized goods. After issuing show cause notice dated 25th September, 2001, the Commissioner of Customs (Adjudication) by order-in original dated March 7, 2002 confiscated the seized goods and inter alia levied penalty of Rs. 5,00,000/- on the petitioner under section 112 (a) and 112 (b) of the Customs Act, 1962 (Act for short ). Challenging the said order, the petitioner filed an appeal before the Customs, Excise and Gold Appellate Tribunal, Mumbai and the same is pending. During the pendency of said appeal, the present petition has been filed by the petitioner challenging the jurisdiction of the Commissioner of Customs (Adjudication) to adjudicate the show cause notice dated 25th September, 2001.

(3.) MR. C. Harishankar, learned Counsel appearing on behalf of the petitioner submitted that in view of Para 73-C of the Adjudication Manual of the Bombay Customs House, the jurisdiction of the Commissioner of Customs (Adjudication) to adjudicate upon any goods imported as baggage was expressly barred and, therefore, the adjudication order passed by the Commissioner dated March 7, 2002 was without jurisdiction. He submitted that under Para 73-C of the Adjudication Manual, only the Deputy Commissioner of Customs was empowered to adjudicate the show cause notice. He submitted that if the Deputy Commissioner had adjudicated the impugned show cause notice, then the petitioner would have had a right of appeal before the Commissioner (Appeals) under section 128 of the Act and thereafter a further right of revision to the Central Government under section 129-DD of the Act. He submitted that the adjudication of the show cause notice by the Commissioner, in contravention of Para 73-C of the Adjudication Manual, has caused serious prejudice to the petitioner because against the order of the Commissioner, the appellate remedy is to file appeal before C. E. G. A. T. under section 129-A, because no appeal under section 128 before Commissioner (Appeals) is permissible against an order passed by the Commissioner. It was submitted that if the matter was adjudicated upon by the Deputy Commissioner then the petitioner would have had two remedies, that is, the remedy of appeal before Commissioner (Appeals) and thereafter, the remedy of revision before the Central Government. He submitted that in revision there was no requirement or predeposit of the demand, whereas in the appeal before C. E. G. A. T. , the petitioner is required to make predeposit unless waived by the Tribunal. He submitted that although under section 122 of the Act, the Commissioner had unlimited jurisdiction of adjudication, reading section 129-A, section 129-DD of the Act with Para 73-C of the Adjudication Manual, it was clear that the jurisdiction of the Commissioner was barred in respect of the goods imported as baggage and in the present case since the Commissioner adjudicated upon the goods imported as baggage, the said order of the Commissioner is liable to be quashed and set aside.