ROSHANLAL B. JAIN Vs. CC (P)

JUDGEMENT

(1.) THESE two appeals are filed by the party against the above captioned impugned order dated 25.5.1993 of the respondent praying for setting aside the same and for such other orders as deemed fit.

(2.) IN support of the appeal Shri Arun Mehta, the learned advocate along with Shri H.G. Mehta, advocate, has argued that the Collector of Central Excise, Mumbai is not competent to transfer the case to the Collector of Customs (Prev.), Mumbai on his own and the impugned order is not valid. The Superintendent cannot override the powers of Assistant Collector under Section 5(2) of the Customs Act in issuing the corrigendum, when the Show cause Notice is issued by the Assistant Collector, Central Excise, Mumbai -I. The Superintendent is not empowered to issue corrigendum under Section 6 of the Customs Act. He is not the proper officer under Section 2(34) of the Customs Act to transfer the case from one Collector to another Collector. It was for the Central Board to appoint the adjudicating authority by separate order or by separate notification. So the orders challenged is without jurisdiction. Seized goods were already disposed off on 21.10.1989, earlier to the issue of Show cause Notice on 21.2.1990 which is not mentioned in the said notice. Thus the Show cause Notice becomes infructuous as there is no occasion to Show cause for confiscation. In the absence of the availability of the goods the order confiscating the sale proceeds of the same is not proper and correct, as the appellant were not called upon to show cause for the same. Any variation in the value realised by way of the sale proceeds would materially affect the value given in the Show -cause Notice i.e. Rs. 11,06,970/ - and would amount to adjudicating on the sale proceeds. So the appellants are prejudiced for violation of principals of natural justice under Section 124 of the Customs Act in that regard. The impugned order is in violation of Section 110(I -B) of the Customs Act, which requires the preparation of inventory showing the description, quality, quantity, mark, numbers, country of origin to identify the goods in any proceedings under the Customs Act. It has to be certified by Magistrate and should have been a part of the record. No such inventor made in this case nor given to the appellant. It is not possible to establish country of origin; without that the goods cannot be said to be a foreign origin or smuggled goods. It is not established that the goods seized under the purview of Section 11B and Chapter IVA and Section 123 of the Customs Act were notified goods. There are spurious goods of similar brand available in the market which do not fall within the ambit of the Customs Act. The genuineness of the foreign origin of the goods is not established. The Superintendent was not competent to move for the disposal of the goods from the court. Section 123 of the Customs Act is wrongly invoked, and no opportunity was given to the appellant to dis -charge the burden. The panchas were not offered for cross examination. The retraction statement of the appellants are not supported by any independent evidence, but the statements of accomplices are relied upon, which is not correct. There is no proper appreciation of the cross examination of the witnesses. The Show -cause Notice is silent about the specific clause of Section 112 of the Customs Act.

(3.) IT is further contended that the Central Excise authorities have no power for seizure in the Customs proceedings and issue a Show -cause Notice. The Show -cause Notice refers to earlier case against the appellant Roshanlal Jain, which is extraneous and pre -judicial. The panchnama is silent about the country of origin of the goods (Annexure A). In Show -cause Notice dated 19.2.1990 there is no charge of foreign origin marks. The sale proceeds and the confiscation in the impugned order is beyond the scope of the Show -cause Notice. No opportunity is given in this regard to submit the reply. As per Show -cause Notice in the case of Roshanlal Jain is silent as to who inspected. The transfer of proceedings is not supported by any authority. The proceedings conducted by the sanctioning authority (for prosecution) has prejudiced the appellants. There is no evidence to show that the goods are of foreign origin. in the case of Gudipati Papa Rao is relied on in this case. There is no independent evidence to fasten the liability on the appellants for penalty.