Tale of two Customs Commissioners adjudicating a single SCN
GETTING a DRI case adjudicated is not an easy job and the CBEC has to assign it by way of a notification or an order. Here is a classic case of the left hand not knowing what the right hand does. In the present case, two adjudicating authorities were appointed a year apart to decide the “same case” and surprisingly both the Commissioners decided it.
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In exercise of the powers conferred by sub-section (1) of section 4 of the Customs Act, 1962 (52 of 1962), the Board appointed the Commissioner of Customs (Adjudication), Mumbai; Commissioner of Customs (Adjudication), Chennai; Commissioner of Customs (Adjudication), Delhi; and Commissioner of Customs (Adjudication), Kolkata, as Commissioners of Customs, each having jurisdiction over the whole of India, for the purposes of adjudicating the cases as assigned to them by the Board. This was notification No. 37/2003-Cus(NT) dated 3rd June, 2003.
The case covered by Show Cause Notice No. DRI/SRU/INV-13/2003 dated 29/11/2004, was assigned by the CBEC for adjudication to Shri K. Shyamsundar, Commissioner of Customs (Adjudication), Mumbai.
More than two years later, in exercise of the powers conferred by sub-section (1) of section 4 of the Customs Act, 1962, the CBEC appointed the officers specified in column (5) of the Table below to act in respect of the matters specified in the corresponding entries in columns (2) and (3) of the said Table as officers specified in corresponding entry in column (4) of the said Table for the purpose of adjudication and investigation of such matters. This was vide Notification 112/2005-Cus (NT) dated 28.12.2005.
TABLE
Sl. No. | Show Cause Notice | Name of the party | Designation of Officer | Designation of Officer |
|---|---|---|---|---|
(1) | (2) | (3) | (4) | (5) |
8 | DRI/SRU/INV-13/2003, dated 29th November, 2004 | M/s. Tirupati Exports | (i) Commissioner of Customs (Export Promotion), New Custom House, Mumbai; | Commissioner of Customs (Import), Jawahar Customs House, NhavaSheva. |
Noticed something strange - yes, the very case that was assigned by the Board to the Commissioner of Customs (Adjudication) was assigned to the Commissioner of Customs (Import), JNCH, Nhava Sheva.
But strangely enough, both the adjudicating authorities were operating in tandem inasmuch as whereas the Commissioner of Customs (Adjudication), Mumbai heard the appellants and passed an order-in-original on 31/12/2007, the other adjudicating authority without even issuing any notice for personal hearing decided the very same SCN vide order-in-original dated 18/03/2008. This information, the noticees & who are the present appellants before the CESTAT, obtained by employing the RTI Act, 2005.
On the one hand, SCNs lie unattended everywhere in the department and here is a classic case of two different adjudicating authorities deciding the very same SCN.
The appellants are before the CESTAT against this order dated 18/03/2008 and submitted that the CC(Imports), Nhava Sheva had no jurisdiction to pass the order as the SCN had already been adjudicated by Commissioner of Customs (Adjudication), Mumbai on 31/12/2007 and hence the impugned SCN had attained finality; that there was no adjudication remaining to be done. The result of the RTI application was also brought to the notice of the Bench and it was submitted that the matter be remanded for fresh adjudication.
On this occasion, the Revenue representative was armed with more “information”. He submitted that the CESTAT had vide its order dated 04/09/2009 dealt with the multiple proceedings and arrived at the conclusion that the Commissioner of Customs (Adjudication), Mumbai had no jurisdiction to adjudicate the matter and had accordingly set aside the order dated 31/12/2007. And in this scheme of things, the present adjudicating authority viz. Commissioner of Customs (Imports), Nhava Sheva had attained jurisdiction to adjudicate and had rightly adjudicated the case and hence there is no need to set aside the order dated 18/03/2008.
The Bench observed -
“5. On a careful consideration of the rival submissions, first we find that, in this case, the principles of natural justice has been violated as the information sought by the appellant under RTI Act shows that there is no record of notice for personal hearing sent to the appellants. Further, we do agree with the argument advanced by the learned counsel that the show cause notice merged with the order of the Commissioner of Customs (Adjudication), Mumbai dated 31/12/2007 and attained finality. We further find that the order passed by Commissioner of Customs (Adjudication), Mumbai has been set aside by this Tribunal on 04/09/2009. Therefore, Commissioner of Customs (Imports), Nhava Sheva has the jurisdiction to adjudicate the show cause notice.
6. In these circumstances, we set aside the impugned order and remand the matter back to the Commissioner of Customs (Imports), Nhava Sheva to adjudicate afresh after giving a reasonable opportunity to the appellants to present their case, keeping all the issues open.”
Case by the premier investigating agency DRI - Eight years and still counting...
(See )
The smuggler...is a person who, though no doubt highly blamable for violating the laws of his country, is frequently incapable of violating those of natural justice, and would have been, in every respect, an excellent citizen had not the laws of his country made that a crime which nature never meant to be so. |
An inquiry in to the Nature and Causes of the Wealth of Nations – Adam Smith |