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TMI Blog2022 (11) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... s dismissed. Relevant portion of the impugned order, reads as under:- "We have considered the submissions made by both the sides. We do not find it necessary to grant any adjournment for the purpose of getting any report from the Commissioner of Customs (Port-Exports). We find that in this case, the Order in Original was passed by the Commissioner of Central Excise-Chennai III Commissionerate holding that Commissioner of Central Excise has no jurisdiction to issue a Show Cause Notice to demand Customs duty and hence the proper officer namely the Commissioner of Customs, Bangalore, only has to examine the matter and take appropriate action as per law to demand customs duty, if any payable by M/s.Panel, with reference to the imports made by them through Bangalore. The Commissioner of Customs, Bangalore has sent the file containing the order in Original along with Show cause notice etc., to the Chennai Commissionerate since the imports were made through Chennai Customs". 3. Heard the learned counsel for the petitioner; learned Standing counsel for the second respondent and the learned counsel for the third respondent. 4. The facts on record indicate that the third respondent herei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... go through the proviso to Section 28 of the Customs Act, 1962. As per this provision only Commissioner of Customs can invoke the provision of the said Section, as the clearance of imported goods/materials were done under the jurisdiction of customs. Hence, the invocation of proviso to Section 28 of the Customs Act, 1962 for the assessments, which had already been done by the Customs Authority, cannot be questioned or reopened by the Commissioner of Central Excise as he has no jurisdiction to do so. The case law cited by M/s.PANEL clearly supports this point and is very much applicable to the case. So, I therefore hold that this case cannot be decided by a Commissioner of Central Excise as its relates to demand of customs duty. 9. Incidentally, I may mention that even the Rule (8) of the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996 gives power to Commissioner of Central Excise for demanding duty only in case of misuse of the materials imported under the said Rules and not otherwise. As there is no allegation in the Show Cause Notice about any misuse by M/s.PANEL, even by invoking the said Rule 9 of Customs, ( Import of Goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow Cause Notice to demand customs duty. Hence, the proper officer namely Commissioner of Customs, Bangalore only has to examine the matter and take appropriate action as per law to demand customs duty, if any , payable M/s.PANEL with reference to the imports made by them through Bangalore. 13. In view of the above discussion, I pass the following Order". 7. The order was reviewed by the Commissioner of Customs in terms of Section 129 (A) sub-section (2) of Customs Act, 1962 by the Commissioner of Customs (Port - Export), Chennai vide Order dated 103/2003, pursuant to which, the Customs Appeal No.C/104/03 was filed with a condone delay petition. The petition came to be dismissed by the Tribunal vide impugned order dated 23.01.2004. A parallel review order was also made by the Central Board of Excise and Customs in the exercise of power conferred under Section 35 E(1) of the Central Excise Act, 1944. By an order dated 24.07.2003 bearing Reference No.258-R/03, Central Board of Excise and Customs concluded that there was no error in the show cause notice issued by the Central Excise Authorities as there was a dual control both by the Customs and Excise Department in terms of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner for adjudication by any other Commissioner. Accordingly, the appeal filed by the Revenue is dismissed as devoid of merit". 9. The specific case of the petitioner in the present writ petition is that the order passed by the Appellate Tribunal dated 23.01.2004 was erroneous inasmuch as an Officer of the Central Excise Department was a Officer of the Customs under notification issued under Section 4(i) of the Customs Act, 1962. A reference was invited to Notification No.58/92-Cus (N.T) dated 31.7.1992). It is submitted that specifically the Collector of Central Excise , Madras was later renamed the Collector of Customs and Collector of Central Excise and therefore show cause notices issued by the Commissioner of Central Excise referred to supra were in order. It is therefore submitted that the order passed by the Tribunal on 23.01.2004 dismissing the appeal was incorrect. 10. It is submitted that the Commissioner of Central Excise is also a proper Officer within the meaning of Section 2(34) of the Customs Act, 1962. The impugned order of the Tribunal by the first respondent stating that the impugned order is well reasoned and requires no interference. 11. It is submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2001 and 18.02.2002 seeking to recover the customs duty together with interest thereon issued by the second respondent Commissioner of Central Excise, Chennai III, Commissionerate was within the four corners of law. 17. The second respondent Commissioner of Central Excise, Chennai III, was also competent authority to decide and pass order on the improts made by the petitioner under the resepctive customs notification in terms of Rule 8 of Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996. 18. Therefore, the order passed by the second respondent Commissioner of Central Excise, Chennai III vide Order in Original No.15 of 2002 dated 31.07.2002 dropping a demand was not in accordance with the provisions of Rule 8 of Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996. 19. Since the order was passed by the second respondent, Commissioner of Central Excise, Chennai III, appeal was only to be filed before the Tribunal in Form AE-3 under Section 35(B) of the Central Excise Act, 1944 and not under Section 129(A) of the Customs Act, 1962. Therefore, the Customs Appeal filed by the petit ..... 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