TMI Blog2002 (3) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... the consignment on 30-9-98. The tapes were found to be old and used and the length of tape was found to be 850 feet approximately. The officers drew samples from 12 Cartons. Subsequently the residential premises of the appellant, office-cum-business premises of M/s. Friendly Video Vision and the business premises of M/s. Bhagat Video (Pvt.) Ltd., all at Delhi, were searched on 5-10-98. Statements of Shri Bhagat were recorded on 5-10-98 6-10-98. A show cause notice dated 19-3-1999 was issued to the appellant by the Commissioner of Customs (General) for confiscation of the Video Magnetic tapes seized from the container at Mumbai Docks, for demanding Customs duty in respect of goods imported by the appellant and for imposition of penalty under Section 112(a) 112(b) and Section 114 of the Customs Act. The Commissioner, under the impugned Order, confirmed the demand of customs duty of Rs. 19,83,883 under Sections 28 and 25(1) of the Customs Act; imposed a penalty of Rs. 10 lakhs under Section 112(a), a further penalty of Rs. 10 lakhs under Section 112(b) and another penalty of Rs. 50 lakhs under Section 114 of the Customs Act besides confiscating the goods valued at Rs. 43,70,436/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Customs, TKD and giving the same to the Adjudicating Authority. 3.3 The learned Advocate also mentioned that since the seizure of the goods was made at Mumbai and the seized goods continued to lie there, the jurisdiction, even as per Commissioner's own view in Adjudication Order dated 10-3-1999 in the case of G.M. Overseas Ltd., lay with the Commissioner of Customs, Mumbai, particularly when as per the Department there is no nexus between the imported and exported goods. Reliance has been placed on the decision in the case of Ram Nath Jayant v. Commissioner of Customs, New Delhi, 2000 (119) E.L.T. 312 (T). 3.4 He further contended that since the bonds for fulfilling the post import conditions were executed with the CCE, Delhi and the export goods were exported from the 100% E.O.U. of the appellant under the supervision and seal of Delhi Central Excise Officers, the jurisdiction would lie with the C.C.E., Delhi-I. In support, he referred to Board's Circular No. 27/96, dated 10-5-1996 according to which the administrative work of 100% E.O.U. would be handled by the Commissioner of Central Excise. Reliance was also placed on the decision of the Larger Bench in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at they are different and further the show cause notice treated them as two different personalities; that the expression 'person' in Sections 113 and 114 would mean Friendly Video Vision and not the appellant. He referred to decision in Hindustan Foam Industry v. C.C.E., 1990 (48) E.L.T. 33 (T) wherein the show cause notice served on partners instead of partnership firm was held to be non est in law. 3.8 He also contended that once 'Let Export' Order has been passed on a Shipping Bill by the Proper Officer, the only way to proceed against the export goods is to resort to Section 129D of the Customs Act. Reliance is placed on the decision in the case of Rotoflex Industries v. Collector of Customs, Calcutta, 1996 (64) ECR 585 (T) wherein it was held that when once goods have been released in terms of Section 47, there cannot be confiscation of the same goods without taking recourse to Review Proceedings under Section 129D(1) of the Act. He relied upon the following decisions also - (i) Ajay Exports v. Collector of Customs, Madras - 1986 (26) E.L.T. 873 (T) = 1989 (9) ECR 623 (T) (ii) Parker Leather Export v. Collector of Customs, Madras - 1987 (29) E.L.T. 53 (T) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the container but escorted the sealed container to the I.C.D., TKD, New Delhi; that it is next to impossible that 1.26 lakh used and old unrecorded video tapes on spools could, at all, become available to the appellant for replacing the tapes made from the imported pan-cake; that further statutory register for taking out pan-cake from the warehouse and putting back manufactured, goods were mentioned and signed by the officers. He relied upon a number of decisions such as : (i) Kalra Glue Factory v. Sales Tax Tribunal, 1987 (66) STC 292 (S.C.) (ii) Sawai Singh v. State of Rajasthan, AIR 1986 S.C. 995 (iii) State of Kerala v. K.T. Shaduli, Grocery Dealer, AIR 1977 SC 1627 (iv) Collector of Customs, Chennai v. S.S. Leather Exports, 2001 (135) E.L.T. 338 (T) = 2000 (41) RLT 97 (CEGAT) 5.On merit, the learned Advocate submitted that the entire activities starting from the conversion of pan-cakes into spools till such spools get packed and stuffed in the container were solely under the supervision of Central Excise Officers, attending to this work on cost recovery basis and is also evident from the statutory records signed by them; that when his thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xported, that however, the importer contravened the provisions by selling the imported raw material in the Domestic Tariff Area and exported finished goods made out of old and used material; that the seizure made at Mumbai was in relation to goods having been customs cleared from ICD, TKD, New Delhi and hence the jurisdiction has been rightly exercised by the Commissioner of Customs, New Delhi; that in terms of Board's Telex F. No. 305/4/95-FTG, dated 5-7-96, only day to day work of customs relating to the 100% E.O.U. has been given over to the Commissioner, Central Excise, Delhi; that the said Telex has not taken away the jurisdiction of the Commissioner of Customs (General) to issue show cause notice over customs contravention committed at the time of import/export at I.C.D., TKD, New Delhi. Reliance was also placed on the decision in the case of Engee Industrial Service - 1996 (87) E.L.T. 152 (T) = 1997 (71) ECR 887 (T). The learned S.D.R. also mentioned that Board's Circular Nos. 21/95-Cus., dated 10-3-95 and 122/95-Cus., dated 20-11-95 have been withdrawn by the Board; that under Circular No. 307/5/97 FTT, dated 6-8-97 no approval of Development Commissioner is required; tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (P) Ltd., supra; that the Telex does not pertain only to Mofussil Town; that Circular issued in 1997 does not refer to Circular No. 122/95; that it refers to demand of duty and does not talk of confiscation; that the Notification No. 53/97 under which the impugned goods were cleared was not referred to in the circular; that in the case of Engee Industrial Services it was not held that any of the officer can decide the matter. He also mentioned that in reply that 19-4-1999 it was mentioned that statements of Shri R.K. Bhagat were signed under pressure of threats and coercion and were subsequently retracted as well; that no medical report can point out the slaps given to the appellant by the Officers; that the impugned consignment was under detention which is apparent from letter dated 28-9-98 written by Appraiser of Customs and addressed to Assistant Dock Manager, Mumbai. He further mentioned that in the case of Abha Impex, retraction was made after expiry of seven days; that Doordarshan expert only gave an opinion and no test was conducted by him. Finally he relied upon the decision in the case of Godrej Soaps Ltd. v. C.C.E., Mumbai - 2000 (115) E.L.T. 473 (T) wherein it was held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts are different. In the said case, the imported goods were cleared after presenting the documents, consulting experts in the trade, past record of valuation and after enhancing value. Subsequently the officers of Collector of Customs (Preventive) detained the consignment on the allegation that even the enhanced value was less. In view of these facts, the Tribunal held that the action of the Collector of Customs (Preventive) was invalid because that action ousted a valid exercise of jurisdiction by the officers under the control of C.C. (Calcutta). In the present matter the facts are entirely different as the action has been initiated for not complying with the post importation conditions, in view of this, the Telex F. No. 305/4/95-FTT, dated 5-7-1996 also does not affect the jurisdiction of the present Adjudicating Authority. The said Telex relates to the exercise of control over 100% E.O.Us and not about the action to be initiated under the provisions of Customs Act for violation of the provisions of Customs Act and for not complying with the post importation conditions. 10.We also do not find any substance in the submission of the learned Advocate that prior clearance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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