TMI Blog1988 (10) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... urged that the penalty under Sec. 116 of the Customs Act, 1962, was leviable only on dutiable goods. Insofar as the consignment was exempt from duty no penalty could be levied thereon for short-landing. Further the cargo in question would either fall under T.I. No. 10 or 10(1) and not Item No. 21.01.07. Originally the petitioner before us obtained injunction from the collection of penalty. That came to be vacated by the order of my learned Brother Ratnam, J., on 24th June, 1987 in the following terms :- "No case is made out for continuing the interim injunction any longer, on the facts and circumstances of the case and also on merits as it is common ground that another writ petition raising similar questions had been dismissed. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he jurisdiction of this court under Article 226 of the Constitution of India. Nevertheless, this Court cannot ignore the trend of modern legislation by reason of which the jurisdiction in relation to matters of this kind had been exclusively conferred upon the hierarchy of authorities constituted under the Customs Act, pursuant to Article 323-B of the Constitution of India. First and foremost, what is agitated in this case is that no vires of the provision or a rule or a regulation which alone could rightly attract the jurisdiction of this Court under Article 226 of the Constitution of India. Whether the items forming the subject matter of writ petition are dutiable or not, certainly the authorities are capable of deciding and that is the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat any person aggrieved by any decision or order passed under this Act by an officer of Customs lower in rank than a Collector of Customs may appeal to the Collector (Appeals) within three months from the date of excommunication to him of such decision or order. There is also proviso which states that delay could be condoned for a further period of three months. That provision does not concern us. In the case on hand the impugned order had come to be passed by the Deputy Collector of Customs. Therefore, an appeal would lie against an order passed by the Deputy Collector of Customs under Section 128 of the Act. Section 129-A, Clause 1(b) provides for a further appeal to the Tribunal. Incidentally, it also provides for suo motu powers under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Government Standing Counsel, the present case does not involve any vires or legislative competence. It is urged by Mr. G. Gopinath, learned Counsel for the petitioner that the appellate authority cannot decide this question of jurisdiction. We fail to comprehend as to why he could not. The appellate authority has every jurisdiction to decide whether the lower authority has jurisdiction or not. Therefore, merely saying that jurisdictional issue is involved, it cannot enable the petitioner appellant to invoke Article 226 of the Constitution of India. The position might have been different a few years ago. But certainly not after the enactment of this provision contained in Chapter XV of the Act to which we have made a reference earlier. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Act. Thus, we conclude that the writ petition itself is misconceived and, therefore, merely because while initially in the writ petition or at the time of admission of the writ appeal injunction was granted, it does not mean that we must confirm it, ignoring all the above aspects of the matter. 7. Coming to the merits as well, as rightly pointed out by the learned single Judge in W. P. No. 6738 of 1981, under similar circumstances, the levy of penalty was upheld. No doubt, the said judgment is under appeal. Nevertheless, that is a prima facie ground to vacate the interim injunction. Again in Everest (I) Pvt. Ltd. v.Assistant Collector (Col.) -1986 (24) E.L.T. 469 (Cal.) [1986 Excise Customs Cases, Vol. 9 131], the learned Single ..... X X X X Extracts X X X X X X X X Extracts X X X X
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