TMI Blog2018 (1) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... tance of an assessee, who is equally to blame himself for not being fully ready to argue the case, we think that balance can be struck. We accordingly strike a balance between the rights and equities by directing that, on the appellant/assessee before us paying costs quantified at ₹ 50,000/to the Revenue within a period of four weeks from today, the Appeal of the assessee before the Tribunal to stand revived for a decision afresh on all the points which we have summarized above. Appeal disposed off. - Customs Appeal No. 84 of 2016 - - - Dated:- 18-1-2018 - S. C. DHARMADHIKARI SMT. BHARATI H. DANGRE, JJ. Mr. Naresh Jain a/w Ms. Neha Anchila i/by Agrud Partners for the Appellant. Mr. Pradeep S. Jetly a/w Mr. Jitendra B. Mishra for the Respondent. ORAL JUDGMENT (PER S. C. DHARMADHIKARI, J.) : 1. By this Appeal, the assessee challenges the order of the Customs, Excise and Service Tax Appellate Tribunal, Mumbai (CESTAT) dated 8th March, 2016. This Appeal was partly argued before another Bench and leave was sought to amend the memo to introduce additional grounds. The additional grounds, according to the counsel appearing for the assessee, would raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Customs (Preventive) and a reply to the show cause notice was also addressed to him, but once the show cause notice itself is not issued by the competent authority, then, from the above acts of the assessee, his consent cannot be inferred. Even if consent can be inferred, no amount of consent will confer jurisdiction on an officer who is wholly incompetent to initiate or set the law in motion. Hence, according to Mr. Jain, this question of jurisdiction/competence of the authority goes to the root of the case. He relies upon the judgment and order passed by the Hon'ble Supreme Court in the case of Commissioner of Customs v/s. Sayed Ali and Another, reported in (2011) 3 SCC 537 in support of his arguments that the issue of jurisdiction can be raised for the first time, if it is a pure question of law, even at this further appellate stage. To support that proposition, he relies on an order passed in Customs Appeal (L) No.51 of 2017 [The Commissioner of Customs (Import-I) vs S.S. Offshore Pvt. Ltd.] decided on 21st December, 2017 by another Bench of this Court. On merits, Mr. Jain would submit that the order-in-original is dated 30th March, 2004. The Appeal to the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the decisions brought to our notice. 7. We find some merit in the complaint of Mr. Jain that this was a fairly old Appeal and reaching for hearing before the Tribunal after 13 years. If the Tribunal was of the view that there is an issue for consideration with regard to corelation of the confiscated goods to the duty paying document, namely Bill of Entry or otherwise, but that issue was not framed, nor answered by the order-in-original, then, fairness requires an opportunity to be granted to the appellant. All the more, when an issue of jurisdiction and competence of the official, who set the law in motion, is also raised. The bonafides of the assessee are clear inasmuch as the order under challenge before the Tribunal has been complied with. All the amounts, including the penalties, have been paid and that is undisputed. 8. We find from the order under Appeal that the appellant's Advocate argued the Appeal extensively on merits. However, what the Tribunal holds in para 3 is that the issue involved in this case is regarding the redemption fine imposed by the adjudicating authority and penalties on the assessee. There was a search carried out on the godown of a Roadwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, since the Search and Seizure action under section 110 of the Customs Act is bad in law and void-ab-inito, entire subsequent proceedings such as Show Cause Notice and Adjudication based on illegal seizure are liable to be quashed? (a) Whether on the facts and circumstances of the case, the Appellate Tribunal erred in law by confirming the order in original dated 30th March, 2004 passed by the Respondent merely on the ground that there was the discrepancy in the name of the vessel in the Bill of Entry visavis other import documents? (b) Whether on the facts and circumstances of the case, the Appellate Tribunal has erred in law in dismissing the appeal of the Appellant without dealing with the elaborate submissions and without giving the proper hearing? 11. We have found from the rival contentions and the points arising from the order under Appeal which we have noted above, that no useful purpose would be served by keeping this Appeal pending in this Court. After bringing to the notice of the Tribunal the twin aspects of this controversy, namely, on jurisdiction and merits, as also inviting its attention to the apparent inconsistency in its findings and conclusions, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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