TMI Blog2002 (12) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... The Commissioner should have appreciated that the provisional assessment was done not on account of applicability of Notification No. 203/92, dated 19-5-1992 but on the ground of chemical test of the goods. (2) The Commissioner was wrong in applying the principle of comity of courts is holding D.R.I. action as without authority of law. D.R.I. officials have been empowered with the powers of officers of Customs under the Notification No. 19/90, dated 26-4-1990 and they were fully competent to conduct investigation, make seizure and issue Show Cause Notices. (3) In any case, the D.R.I. Show Cause Notice was made answerable to the said Commissioner of Customs who had jurisdiction to adjudicate the case. (4) The Commissioner is totally unjustified in holding the Show Cause Notices as uncalled for and not imposing any penalty on such grounds, even though he has confiscated the goods. (5) The Commissioner is also unjustified in imposing a very low fine of Rs. 4.50 Lakhs while the value of the goods was to the tune of Rs. 2.35 Crores. He submits that the impugned order should be set aside and the case remanded for readjudication. 2. Shri S.N. Kantawala, learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigating agencies i.e. the DRI, should have passed on the material collected pursuant to their investigation to the concerned officers who were to assess the Bs/E in the quasi-judicial capacity and there was no reason to detain and/or seize the goods imported. The Commissioner has held that the officer of Central Excise, Bombay-III, had no authority of law to detain/seize such imported goods and therefore their action is ab-initio void and without the authority of law. It is pertinent here to re-produce the relevant extract of the judgment of the Hon'ble Patna High Court which reads. (6) In my opinion the argument of Mr. P.R. Das is correct. If the statute is construed in its plain and grammatical sense there would be conflicting orders between two jurisdictions. Complications and difficulties would arise if the two authorities hold conflicting views as to proper way of dealing the trust properties. The petitioner cannot serve two masters at the same time and if there are conflicting orders the petitioner would be placed in an impossible situation. These results are so startling that I must reject the interpretation which leads to them. In a case of this description the rule of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty thereon. The Commissioner, therefore, has grossly erred in holding that the seizure and the Show Cause Notices issued by DRI were ab-initio void and thereby proceeded on premises which are not legally sustainable. D. The Ld. Commissioner ought to have considered the ratio of judgment in the case of M.D. International v. Commissioner of Customs, Mumbai, order No. 87/95A in Appeal No. C/7772/92A CEGAT, New Delhi, wherein the Hon'ble Tribunal held that the Commissioner of Customs (Preventive) was right in assuming the jurisdiction and to adjudicate the proceedings in respect of the goods which were under valued and which were not imported in accordance with the law. While passing the said judgment, the Hon'ble Tribunal had taken into consideration of Ramnarayan Bishwasnath v. Commissioner of Customs, Calcutta, [1998 (34) E.L.T. 202 (T)]. The ld. Commissioner ought to have considered the judgment of Hon'ble Calcutta High Court in the matter of W.P. No. 1827 of 1995, dated 22-12-95, in the case of M/s. Bowreah Cotton Mills v. Commissioner of Customs, Calcutta which upheld the jurisdiction of Commissioner of Customs (P) on the goods seized within his jurisdiction. Further the ld. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufactured by a 100% Export Oriented Units which were cleared for sale in the domestic market under Section 3 of the Central Excise and Salt Act, 1944. However, the concerned party in this case got an erroneous order from the High Court by virtue of which it was not required to pay the relevant excise duty. The Hon ble Supreme Court in this order has held that the party was required to pay not only the duty but also the interest @ 18% p.a. on the duty. The Hon ble Supreme Court has reasoned that a litigant who obtains an incorrect order and does not pay the statutory dues should not be allowed to make any profit or gain from the infraction of law. The Hon'ble Supreme Court has observed that while dealing with the business houses or companies the commercial principles must be applied by the court while ordering payment of interest. The Court was of the view that by deferring the payment of duty due to the revenue, the party had gained undue benefits in the sense that the said amount instead of being deposited in the Government treasury had found way into the party's business. The party has used the said amount without any charges which if it had borrowed from the bank would have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the necessary powers under the Customs Act. There is also no evidence on record that the Custom House had undertaken any parallel investigation. The mere fact of the appraiser in the Custom House provisionally assessing the consignment pending test report cannot be a ground for the DRI authorities not to investigate a serious customs offence relating to the consignment. The Commissioner should not have closed his eyes to the fact that premier investigation agencies like the DRI, CBI CEIB etc. have been set up in the country and have been given parallel powers under the relevant statutes to investigate cases of serious fraud having either implications over more jurisdiction than one or more states than one or serious cases where the field officials have either been negligent or collusive. The Commissioner's order disregarding the jurisdiction of such premier agencies as DRI and requiring them to pass on the material available with them to the field officials will seriously undermine the functioning of such agencies apart from jeopardising the economic health and well being of the nation. The action of the Commissioner is clearly against the statutory provisions. He has also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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