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2022 (2) TMI 746 - AT - CustomsJurisdiction - scope of the subject offence was not limited to the one within SEZ but also an offence of smuggling dutiable goods from a territory outside India into the Indian Customs territory - whether the authorities under the Customs Act enjoy jurisdiction over SEZ units? - HELD THAT:- In the cases of M/S MEENAKSHI INTERNATIONAL VERSUS CC (I&G) , NEW DELHI [2016 (11) TMI 851 - CESTAT NEW DELHI], either co-ordinate division benches or single members of this Tribunal have consistently held that the authorities under the Customs Act do not enjoy such jurisdiction. The only discordant note has been struck by a Division Bench in SHRI JATIN ARORA VERSUS C.C., NEW DELHI [2017 (11) TMI 1119 - CESTAT NEW DELHI]. We are not required to reconcile between these orders of this Tribunal as there is, already available to us, guidance from a High Court on this question. We are required, therefore, to reconcile between two decisions of the Hon’ble Gujarat High Court in BHARTI J. GANDHI VERSUS UNION OF INDIA [2009 (12) TMI 439 - GUJARAT HIGH COURT] and UNION OF INDIA VERSUS OSWAL AGRICOMM PVT. LTD. [2010 (7) TMI 712 - GUJARAT HIGH COURT]. Whereas Bharti Gandhi holds that authorities under the Customs Act do not enjoy jurisdiction over SEZ units, Oswal Agricomm reaches the opposite conclusion, but without referring to its own earlier decision in Bharti’s case. In any case and in our opinion, it is not for us to weigh the relative merits of the reasoning adopted by these two judgements, both being rendered by a High Court, to which we must defer. The benefit of the interpretations, drawn consistently by various Benches, are in favour of the tax payer/ appellants herein, in these batch of cases, including the decision of the Hon’ble Gujarat High Court in Bharti Gandhi’s case which, both parties before us agree, has attained finality. The impugned order and the demands and penalties raised therein, against all the appellants are set aside - Admittedly, there is a permission letter placed on record permitting the appellant in Customs Appeal No. 21358 of 2016 viz. M/s. Ashwin Gold Pvt. Ltd. for outsourcing 50 kgs. of gold to one of its units in DTA. The alleged difference is of about 49 kgs. Hence, if telescoping of the above 50 kgs. is given, then there may not be any shortage. But, the Adjudicating Authority has ignored this aspect completely, which appears to be incorrect - appeal allowed.
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