TMI Blog2003 (10) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority, viz., the Commissioner of Customs, by order dated 17-4-2002 held against the petitioner holding that the goods referred to above imported by the petitioner are covered by para 5.3 of the EXIM Policy and they are liable to be confiscated under Section 111(d) of the Customs Act r/w Section 3(3) of the Foreign Trade (Development and Regulation) Act, 1992, as the petitioner/importer do not possess any valid licence for importing the impugned goods, even assuming their claim to be second hand/used goods. 4.Against the said order of the second respondent dated 17-4-2002, an appeal in C/259/2002 was preferred by the petitioner before the Customs, Excise and Gold (Control) Appellate Tribunal - the third respondent herein (CEGAT for brevity) and the said CEGAT by order dated 5-11-2002 set aside the order of the Adjudicating Authority, viz., the Commissioner of Customs, dated 17-4-2002 and remitted the matter to the Commissioner of Customs, in the light of the submissions made by the learned counsel for the writ petitioner himself, who sought for remand of the matter to the Commissioner of Customs for re-consideration of the pleas in terms of the proceedings of the Director Gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instructions may be brought to the notice of all concerned by way of issuance of suitable Public Notice/Standing Order. Difficulties, if any, in implementation of the Circular may be brought immediately to the notice of the Board. Kindly acknowledge receipt of the Circular. Sd/. Under Secretary to the Govt. of India." 6.As per the said Circular dated 17-12-2002, the Additional Commissioner of Customs is empowered to adjudicate the impugned matter after the order of remittance dated 5-11-2002 by the CEGAT. 7.Pursuant to the orders of remittance dated 5-11-2002, the Additional Commissioner (Imports) - the first respondent herein passed the impugned order dated 6-5-2003 holding that the imported items viz., used computer, monitors and mouse, valued at Rs. 10,85,190/- are to be considered as office equipments other than the capital goods and therefore confiscated the same under Section 111(d) of the Customs Act, and further imposed a penalty of Rs. 1,00,000/- on the petitioner under section 112(a) of the Customs Act. Of course, the impugned order of the first respondent dated 6-5-2003 itself provides for an appeal remedy before the Commissioner (Appeals), Customs House, Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, viz., the scheme of the Act, where the Commissioner of Customs is the Adjudicating Authority, the CEGAT alone is the Appellate Authority and when the CEGAT - Appellate Authority directed the original Adjudicating Authority, viz., the Commissioner of Customs to hold a de novo enquiry, only the Commissioner of Customs ought to have conducted the de novo enquiry and by violating the above direction by passing the impugned proceedings dated 6-5-2003 by the Additional Commissioner of Customs, and directing the petitioner to file an appeal against the impugned proceedings dated 6-5-2003 before the Commissioner of Customs, would confer the powers of the appellate authority viz., CEGAT on the original authority himself viz., Commissioner of Customs to decide the matter on appeal, which amounts to abrogation of powers conferred on the statutory authorities. 10.4.Thirdly, the learned Senior Counsel appearing for the petitioner, based on the decisions of the Apex Court in Popular Plantation v. State of Kerala, reported in AIR 1991 SC 1232; Pankaj Bhargava v. Mohinder Nath, reported in AIR 1991 SC 1233; and Mohasinali Merchant v. Shyamlal and others, reported in (2000) 9 SCC 734, co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in dispute that the power of the Government to re-notify the jurisdiction for the purpose of adjudication, relied upon by the respondents in Circular dated 17-12-2002, was not challenged at any point of time. Even though the CEGAT allowed the appeal and remitted the matter to the Commissioner of Customs, it is apparent that thereafter the said Circular dated 17-12-2002, re-notifying the jurisdiction of the Adjudicating Authority, viz., the Additional/Joint Commissioner of Customs, Commissioner of Customs came into force. Once such power of the Appellate Authority is valid in law, unless the same is set aside in a manner known to law, I am of the considered opinion, as rightly pointed out by the learned Additional Solicitor General, the jurisdiction of the Appellate Authority in the order dated 24-6-2002 remitting the matter to the Commissioner has to be read only with Circular dated 17-12-2002 and Sections 2(1), 2(8) and 128 of the Customs Act. 13.5.In the instant case, the Additional Commissioner is empowered to act as an Adjudicating Authority as per section 128 of the Customs Act for the purpose of adjudication into the matter in view of the Circular dated 17-12-2002. But ..... X X X X Extracts X X X X X X X X Extracts X X X X
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