M/s.Ramesh Sakalchand Jain & Anr. v. Union of India & Ors.

Mr. P.S. Jetly with Mr.Rohit B. Pardeshi for respondents ... CORAM : F. I. REBELLO AND D.G. KARNIK, JJ DATED : 18th August 2009 P.C:-

Silver Ingots were seized and attached. That was subject matter of a show cause notice. An order came to be passed on 30th January 1990 confiscating five silver ingots weighing 152 kilograms under section 113(1) of the Customs Act 1962 and also imposing penalty. The order was passed by the Dy. Collector of Customs (Preventive) (Bombay).

The petitioner preferred an appeal before the Tribunal. The Tribunal went into the question whether against the order passed by Dy. Collector, an appeal would lie before it. On consideration of the question and on hearing 2 the representative of the petitioner herein, the Tribunal held that it was not the forum when an appeal would lie against an order passed by the Dy. Collector and the appeal ought to have been filed before Collector (Appeals)

Petitioner instead of preferring an appeal before Collector of Customs approached this court and has filed the present petition. By the present petition, petitioner seeks to impugn the original order dated 30th January 1990 as also the order of the Tribunal dated 12th July 2009.

At the hearing of this appeal on behalf of the appellant, it was firstly submitted that they had no proper opportunity before the Tribunal and they were wrongly advised by the consultant. In the instant case, we find that the consultant Mr.Sonawane was heard on the very issue. In paragraph no. 2 of the order, it is also recorded that “No objection” was taken at the stage of adjudication in the matter of issues of show cause notice and passing of the order.”

The question before us for consideration is whether the Tribunal was right in arriving at a conclusion it has arrived at, namely that it was not the forum to hear the appeal arising from an order passed by the Dy. Collector. The issue whether Dy. Collector rightly heard the matter has not been convassed before us. In our opinion, considering the provisions of section 128(1) of the Customs Act 1962, the Tribunal was within its jurisdiction to 3 arrive at a finding which it has arrived at. Apart from that, in the order dated 30th January 1990 which was served on the petitioner along with the forwarding communication, it was clearly set out that the appeal against the order would lie with the Collector of Customs (Appeals). It is therefore not a case where the petitioner was caught by surprise. It is not possible to accept that failure by the consultant will give cause to the petitioner to approach this court in the exercise of its extra-ordinary jurisdiction.

We have asked the learned counsel whether apart from the question of jurisdiction as to forum whether there was any other jurisdictional error in the order in original or in appeal or violation of the principles of natural justice which would result in this court exercising its extra ordinary jurisdiction. Learned counsel has been unale to point out any such issue.

The order was passed pursuant to section 11(j) of the Customs Act as the petitioner had not notified in terms set out thereunder the silver ingots. The explanation given was not accepted. This is purely a finding of fact. Learned counsel is unable to point out any jurisdictional error. In the light of that, in our opinion, this is not a fit case to exercise our extra ordinary jurisdiction. In the light of that, Rule discharged. Interim order stands vacated. (D.G. KARNIK, J)

(F.I. REBELLO, J)