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TMI Blog2024 (12) TMI 1156X X X X Extracts X X X X X X X X Extracts X X X X ..... bi with hopes of making a profit on its sale at some time or the other. 2. Shri Deepak Sharma, Learned Authorized Representative, is no less aggrieved that the appellant has deprived the Government of India, in revision jurisdiction under section 129DD of Customs Act, 1962, of considering the challenge to 'absolute confiscation' of 'prohibited goods' that the two lower authorities held to be in accord with legislated intent of section 125 of Customs Act, 1962. On behalf of the appellant, it was submitted that they were only concerned with fair disposal of appeal and pleaded only that the relief sought by them should not be allowed to fall between two stools merely from both authorities declining to take the trouble of deciding on their respective, and mutually exclusive, jurisdictions. 3. Strictly speaking, it should not matter a whit to either side in a dispute as to the authority that gets to dispose off a grievance; both are, for such purpose, vested with responsibility to respond by applying known law to established facts. It is for the aggrieved person to choose from available remedies and to bear the consequence - including that of lack of jurisdiction; it is for the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or order passed under this Act may, within three months from the date of the communication to him of such decision or order- (a) where the decision or order has been passed by a Collector of Customs, appeal to the Board; (b) where the decision or order has been passed by an officer of customs lower in rank than a Collector of Customs, appeal to the Appellate Collector of Customs: Provided that the Appellate Authority may, if it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months. allow it to be presented within a further period of three months......' in section 128 therein and, in addition to revision by the Central Board of Excise & Customs (CBEC) [also referred to as 'Board'] under section 130 of Customs Act, 1962 on its own motion or on application of any aggrieved person, also provided for '(1) The Central Government may on the application of any person aggrieved by (a) any order passed under section 128, or (b) any order passed under section 130 otherwise than on the application of any aggrieved person, or (c) any order passed on the application of any aggrieved person under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge, import and export across customs frontiers' among the subjects for handling by tribunal, or hierarchy of tribunals, with or without excluding courts from the appellate scheme. That enablement, however, did not provision for exclusion of any part of the relevant subject from the relevant tribunal. 7. And yet, just two years into the operation of the Tribunal, section 43 of Finance Act, 1984 inserted the proviso supra to exclude jurisdiction of the Tribunal and to restore revision, which, though, was restricted to orders of Collector (Appeals) relating only to (a) any goods imported or exported as baggage, (b) short landing under section 116 of Customs Act, 1962, and (c) payment of drawback, emanating from adjudication at the level of Assistant Collector of Customs Act, 1962, with the Central Government by insertion of section 129DD of Customs Act, 1962. In effect, this was not conferment of appellate jurisdiction but alienation of appellate function of the Central Board of Excise & Customs (CBEC) and the broader sweep of revision powers of the Central Government initially and, on reconsideration, was restored to the latter in the specified circumstances. Nothing changed except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be, too, for the constitutional foundation does not permit erasure of jurisdiction of the Tribunal from levy, assessment, collection and enforcement of tax or consequence attending upon crystallizing of the taxable event. Doubtlessly, some aspect of baggage, as do the other two exclusions, is exception from the constitutionally mandated inalienability. It would, thus, be of value to scrutinize the other two. 9. The reasons for restoration of appeals pertaining to 'payment of drawback' and 'short landing penalty' in the revision jurisdiction may throw some light on the thread of legislative intent in lateral substitution of the Tribunal for appellate remedies initially and the exclusion shortly thereafter. The barebones of a taxing statute are the enunciation of 'taxable event', manifested as the 'charging provision', and the 'taxable measure', manifested as the 'valuation provision', with consequent assessment, enabled by 'assessment provision', and 'refund provision', for return of duty collected without authority of law, thrown in to complete the circle; all else is machinery provisioning to ensure that processes are geared to directing 'goods' to appropriate custom station f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate' in the declining years of the age of empire. It was the Continental Congress, charged with enactment of the Constitution of the then yet to be established United States of America, that legislated drawback as a precursor to erection of the customs frontiers of the new nation. This contractual obligation of the State to exporters, statutorily ensconced, found its way into the customs laws of countries since then in acknowledgement of territorial bounds and not to be denied save when goods have not left the country or the elements of sale in the course of international trade was incomplete. Thus it is that the expression deployed in proviso to section 129A of Customs Act, 1962 is 'payment of drawback' and not 'sanction of drawback' laying the boundaries of the revision retained after the incorporation of the new appellate regime. Thus it is that, largely, drawback is paid under rule 15 of Customs and Central Excise Duties Drawback Rules, 2017 in accordance with the schedule of rates prepared, and notified, by the Central Government under the authority of rule 3 therein. Thus it is also that the payment of drawback and recovery is governed by these Rules and withholding drawback ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided solely on the treatment of 'baggage' accorded to 'currency' insofar as absolute confiscation was concerned. Here, though that relief has been sought, the dispute was premised on treatment accorded for 'assessment' by customs authorities and consequence thereof. 12. The remedial streams, with one extending from beyond adjudication and first appeal or directly from adjudication, as the case maybe, through the High Courts, or in specified cases directly, to the Supreme Court are dealt with through the Tribunal while the other, like a spur, branches from appellate authority below the Tribunal to the Government of India away from adversarial representation. The latter specifically originates from adjudication below the level of Commissioner but it is not that every decision emanating therefrom strays from the mainline, to continue the railway analogy, for there are some within the exclusive jurisdiction of Deputy/Assistant Commissioner, such as sanction of refund, that, yet, travel only through the Tribunal; it is obviously not the origin of adjudication that determines shunting to the spur and nor has it aught to do with monetary ceiling of adjudicatory competence. This dicho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-hearted approval of Parliament and of trade and industry.' which was, as near as it ever could be, an acknowledgement that the existing system did not present appearance of being independent to the tax paying community even if the Government was convinced about its own objectivity in adversarial entanglements with tax-payers and, thus so, even as the other tax burden - direct taxes - has statutorily, and long before the prevailing enactment, accepted the efficacy of an appellate structure untouched. With this announcement, the appellate remedy was not only freed from the executive clutch but extended to incorporate the constitutional courts in the scheme of dispute resolution. The Central Board of Excise & Customs (CBEC) was divested off its empowerment to dispose appeals and both founts of adjudicatory determination were subject to appellate oversight, directly and once removed, of the Tribunal assuring not only true separation of tax administration from dispute resolution but also ensuring that the optics of justice delivery bespoke maturation. And yet, within a short span of existence of the Tribunal, legislation, and without much disturbance of the design - by restricting it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n' of export goods. The disputes triggered, other than by assessment to tax or appraisal of goods under section 17 of Customs Act, 1962, in exports, and which, thereby, do not vest right of appeal to the Hon'ble Supreme Court, are amenable to be disposed off without substantial arguments on drawback claimed but not paid and appropriate for revision jurisdiction. It may, thus, be posited that escape from merit review by the highest court in the land that is the final authority in matters of 'rate of duty' and 'value', and contrary to the objectives of appellate reform in Customs Act, 1962, marks the divide separating appellate jurisdiction of the Tribunal - as subject to appellate superintendence of the Hon'ble Supreme Court - from the revision jurisdiction of the Central Government. 15. Both 'shortlanding', as it stands, and 'payment of drawback', as constrained, are excluded from coverage intended by Article 323B of Constitution for establishing the Tribunal and vesting inalienable jurisdiction which was re-visited for excluding that which was alienable as elaborated supra. Baggage, however, is not devoid, though even if not under section 17 of Customs Act, 1962 of assessment and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act, 1962. Consequently, revisionary jurisdiction is barred upon recourse to 'rate of duty' and 'value' in relation to one or more articles brought by a passenger that is segregated for separate action under Customs Act, 1962. Though not in the present dispute, the characteristics of the article may even bring it within the adjudicatory framework of Commissioner of Customs; surely, Learned Authorized Representative would be hard put to suggest that absence of such distinguishment in the present instance suffices to challenge the competence of the Tribunal to dispose off the appeal. 17. We may, thus, hold that 'assessment' is the primary determinant for clearance of goods under customs law and, consequently, inalienable from the appellate jurisdiction of the Tribunal. Even the excluded jurisdiction, under proviso to section 129A of Customs Act, 1962, other than 'shortlanding', operates only to the extent of not being a consequence of assessment or re-assessment, where 'payment of drawback' is concerned, under section 17 or section 18 of Customs Act, 1962 and, even if assessment is concerned, as in 'baggage', only to the extent that the original authority has ordered by recourse t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be carried in person. In addition, the original authority had held that the passenger had contravened the Foreign Trade Policy (FTP) by carrying 'gold jewelry', which was not 'bona fide baggage', on arrival from abroad and that he did not qualify as eligible, by length of stay abroad, either for bringing in on payment of duty or even to the extent of 20 grams, and of value of Rs. 50,000, without payment of duty. It was further held by the original authority that recourse to non-declaration was available only to passenger who are not carrying dutiable goods and not beyond that permitted without payment of duty. That, however, did not restrain the first appellate authority from taking recourse to restriction imposed by the Reserve Bank of India (RBI) [circular no. 25 dated 14th August 2013 - RBI/2013-14/187, AP (DIR Series)] on import of gold only by 'specified agency' which, too, added padding for being prohibited to be imported. And having done so, affirmed the discretionary empowerment vested by section 125 of Customs Act, 1962 in the confiscating authority to deny redemption of goods. 21. We entertain no doubt that the appellant was ineligible to import gold jewelry as baggage o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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