Commissioner of Customs vs Md. Ahmed Ali Khan

Bhaskar Bhattacharya, J.—The following questions arise for determination in this application for reference u/s 130 of the Customs Act:

Whether by virtue of the Notification No. 250-Cus. and Notification No. 251-Cus. - both dated 27th August 1983, concurrent jurisdiction has been conferred upon both the Collector of Customs (Preventive), West Bengal and the Collector of Customs, Calcutta or exercising power over the area mentioned in Item No. 2A under Column 1 of Notification No. 251?

The facts giving rise to filing of the present application may be summed up thus:

(a) Acting on information that some containers lying unclear in the docks were imported in the name of fictitious firms, the Officers of Dock Intelligence Unit (DIU) detained on 7th June, 1995 four containers landed Ex. M. V. Dhaulgiri and Ex. M. V. Tiger River. Those four containers were landed at Calcutta dock on 16th November, 1994 and 1st December, 1994 respectively and were subsequently shifted to CFS Balmer Lawrie on 28th February, 1995.

(b) Cargo-manifest for the said containers revealed the description of the goods as "Woollen Rags (Completely in premutilated condition) fumigated".

(c) Examination of the goods in those containers in the presence of representative of C.H.A. Steamer Agent, CFS Agent and two independent witnesses revealed that those were ''complete'' assorted garments of cotton, synthetic and very few of woollen. Some of the goods in these containers were found to be new garments.

(d) Since neither Shri Tansukh Shah, the holder of the Power of Attorney of Messers Shine Woollen Mills nor the principal, who held themselves out as claimants could produce any documents in support of legal possession of those garments, those along with the containers were seized u/s 110 of the Customs Act.

(e) Ultimately, a show-cause notice was issued and on adjudication, by order dated 19th February, 1996, the Commissioner of Customs (Preventive) confiscated the bales of garments u/s 111(d) as also u/s 111(m) for misdeclaration in the relevant Bills of Entry. The containers were, however, released being not liable to confiscation.

(f) The adjudicating Commissioner kept the question of imposition of penalty in abeyance since the other two notices had not responded to the show-cause notice and did not appear for personal hearing.

(g) Subsequently, by another order dated 24th May, 1996 the Commissioner imposed penalties of Rs. 1,00,000/- each on the two respondents.

Being dissatisfied, the respondents preferred an appeal before the Customs, Excise & Gold (Control) Appellate Tribunal, Eastern Bench, Kolkata and by the order dated November 12, 1997 the Tribunal set aside the order of imposition of penalty and confiscation on a question of jurisdiction.

The Tribunal was of the opinion that in view of the Notification No. 251 of 1983-Cus., dated 27th August, 1983 as well as the Notification No. 250 of 1983-Cus., dated the same day, the Commissioner of Customs, Kolkata which alone had the jurisdiction to adjudicate the matter and in the case before us, the Commissioner of Customs (Preventive), West Bengal having adjudicated the matter, the same was without jurisdiction. Therefore, on that ground alone the orders of penalty and of confiscation were set aside. Liberty was, however, given to the Commissioner of Customs, Kolkata or any of his competent Officers to take decision of re-adjudicating the case after issuing fresh show-cause notice within a month of the receipt of the said order after complying with the principles of natural justice.

The Revenue thereafter preferred an application for reference u/s 130(1) of the Act before the Tribunal but the same was rejected by the order dated February 20, 2002. Hence this application u/s 130(3) of the Act.

Therefore, the only question that arises for determination is whether the Commissioner of Customs (Preventive), West Bengal had the required authority to adjudicate the dispute.

To appreciate the aforesaid question, the following notifications being Notification No. 250-Cusv and Notification No. 251-Cus., both dated 27th August, 1983 issued in exercise of the power conferred u/s 4(1) of the Act are quoted below:

APPOINTMENT OF OFFICERS OF CUSTOMS

In exercise of the powers conferred by Sub-section (1) of Section 4 of the Customs Act, 1962 (52 of 1962), the Central Government hereby appoints the officers mentioned in column (2) of the Table below to be the Collector of Customs, the officers mentioned in column (3) thereof to be the Deputy Collector of Customs, and the officers mentioned in column (4) thereof to be the Assistant Collectors of Customs, for the areas mentioned in the corresponding entry in column (1) of the said Table:

TABLE ____________________________________________________________________________________ Area Designation of the Officer ____________________________________________________________________________________ (1) (2) (3) (4) ____________________________________________________________________________________ 1. Bombay, Thane Collector of Deputy Col- Assistant and Kolaba districts in Customs lectors of Cus- Collectors of the State of Maharash- (Preventive), toms working Customs tra Bombay. under the working Additional control of the under the Collectors Collector of control of (Preventive), Customs Collector of Bombay, Cen- (Preventive), Customs tral Excise Bombay. (Preventive), Collectorate. Bombay. ____________________________________________________________________________________ (a) Districts of Pithora- Collector of Deputy Col- Assistant garh, Almora, Nainital, Customs lectors of Cus- Collectors of Pillibhit, Kheri, Ba- (Preventive), toms working Customs haraich, Gonda, Basti, Patna. under the working Gorakhpur, Deoria, control of the under the Lucknow, Barabanki, Collector of control of the Faizabad, Azamgarh Customs Collector of and Varanasi in the (Preventive), Customs State of U.P. Patna. (Preventive), Patna. (b) District of Cham- paran, Muzaffarpur, Darbhanga, Saharsa, Purnea, Monghyr, Patna, Sitamarhi, Vaishali, Madhubani, Samstipur, Begusarai, Nalanda, Saran and Siwan in the State of Bihar. (c) District of Darjee- ling in the State of West Bengal. ____________________________________________________________________________________ 3. The whole of- Collector of Deputy Col- Assistant (a) The State of Gujarat Customs, lectors of Cus- Collectors of (excluding Kandla Free Gujarat. toms working Customs Trade Zone and the under the working area within a radius of control of the under the 8 Kilometres all Collector of control of the around the Zone). Customs, Gu- Collector of Explanation. - For the jarat. Customs, purposes of this Tab- Gujarat. item, "Kandla Free Trade Zone" shall comprise of the places bearing the survey numbers and enclosed by the boundaries as are specified in para- graph 3 of the notification of the Govern- ment of India in the Ministry of Finance (Department of Reve- nue) No. 77- Customs, dated the 17th April, 1980 (b) The territories of Daman and Diu of the Union territory of the Goa, Daman and Diu and the Union territory of Dadra and Nagar Haveli. ____________________________________________________________________________________ 4. The whole of - Collector of Deputy Col- Assistant (a) the State of West Customs lectors of Cus- Collectors of Bengal. (Preventive), toms working Customs West Bengal under the working control of the under the Collector of control of the Customs Customs (Preventive), (Preventive), West Bengal. West Bengal. (b) the State of Sikkim; and (c) the Union territory of the Andaman and Nicobar Islands. ____________________________________________________________________________________

APPOINTMENT OF OFFICERS OF CUSTOMS

In exercise of the powers conferred by Sub-section (1) of Section 4 of the Customs Act, 1962 (52 of 1962), and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) Nos. 167 and 168-Customs, both dated the 8th June, 1983, the Central Government hereby appoints the officers mentioned in column (2) of the Table below to be the Collectors of Customs, the officers mentioned in column (3) thereof to be the Deputy Collectors of Customs, and the officers mentioned in column (4) thereof to be the Assistant Collectors of Customs, for the areas mentioned in the corresponding entry in column (1) of the said Table:

TABLE ____________________________________________________________________________________ Area Designation of the Officer ____________________________________________________________________________________ (1) (2) (3) (4) ____________________________________________________________________________________ 1. (a) Port of Bombay, Collector of Deputy Collec- Assistant Col- Bombay Airport Customs, tors of Cus- lectors of Cus- (Santa-Cruz and Sa- Bombay. toms working toms working har Airports), the under the con- under the co- area under the juris- trol of the Col- ntrol of Collec- diction of the Bom- lector of Cus- tor of Cus- bay corporation toms, Bombay. toms, Bombay. (b) Port of Bombay, Collector of Deputy Collec- Assistant Col- Bombay Airport Customs, tors of Cus- lectors of Cus- (Santa-Cruz and Sa- Bombay Air- toms working toms working har Airports), the port. under the con- under the con- area under the juris- trol of the Col- trol of the Col- diction of the Bom- lector of Cus- lector of Cus- bay corporation toms, Bombay toms, Bombay Airport. Airport. ____________________________________________________________________________________ 2. (a) Port of Calcutta, Collector of Deputy Collec- Assistant Col- Dum Dum Airport, Customs, tors of Cus- lectors of Cus- the area under the Calcutta. toms working toms working jurisdiction of Cal- under the con- under the con- cutta, Howrah and trol of the Col- trol of the Col- South Suburban Cor- lector of Cus- lector of Cus- porations, so much of toms, Calcutta. toms, Calcutta. the Hooghly river as is down stream of the Northern limit of Calcutta Port, and all lands as are within 10 Kilometres of the high water mark at spring tide on either side of the river. (b) the Andaman and Nicobar Islands. ____________________________________________________________________________________ 3. Port of Madras, the Collector of Deputy Collec- Assistant Col- Menabakkam Airport Customs, tors of Cus- lectors of Cus- and the area under Madras toms working toms working the jurisdiction of the under the con- under the con- Madras Corporation trol of the trol of the Col- and Saidapet Taluk Collector of lector of Cus- Customs, toms, Madras. Madras. ____________________________________________________________________________________ 4. Port and Airport of Collector of Deputy Collec- Assistant Col- Visakhpatnam and Customs, tors of Cus- lectors of Cus- the area under Visak- Madras. toms, Visak- toms, Visak- hapatnam Municipal- hapatnam haptnam ity. ____________________________________________________________________________________ 5. The territory of Collector of Deputy Collec- Assistant Col- Goa of the Union Customs, tors of Cus- lectors of Cus- territory of Goa, Da- Bombay. toms, Goa. toms, Goa. man and Diu. ____________________________________________________________________________________ 6. The whole of the Collector of Deputy Collec- Assistant Col- State of Kerala, the Customs, tors of Cus- lectors of Cus- Union territory of Cochin. toms working toms working Lakshadweep and under the con- under the con- the territory of Mahe trol of the Col- trol of the Cus- of the Union territory lector of Cus- toms, Cochin. of Pondicherry. toms, Cochin. ____________________________________________________________________________________ 7. The whole of the Collector of Deputy Collec- Assistant Col- State of Karnataka. Customs, tors of Cus- lectors of Cus- Bangalore. toms working toms working under the con- under the con- trol of the Col- trol of the Cus- lector of Cus- toms, Banga- toms, Banga- lore. lore. ____________________________________________________________________________________ 8. The Union territory Collector of Deputy Collec Assistant Col- of Delhi and the Customs, tors of Cus- lectors of Cus- whole of the State of Delhi. toms working toms working Haryana. under the con- under the con- trol of the Col- trol of the Cus- lector of Cus- toms, Delhi. toms, Delhi. ____________________________________________________________________________________ 9. The whole of - Collector of Deputy Collec- Assistant Col- (a) the State of Tamil Customs, tors of Cus- lectors of Cus- Nadu, excluding (i) Tiruchira- toms working toms working the areas under the palli. under the con- under the con- jurisdiction of the trol of the Col- trol of the Cus- Collector of Customs, lector of Cus- toms, Madras; and (ii) the toms, Tiruchirapalli. areas under the juris- Tiruchirapalli. diction of the Collec- tor of Customs and Central Excise, Madurai as defined in Rule 2(ii) of the Central Excise Rules, 1944, and (b) the Union terri- tory of Pondicherry (excluding the terri- tory of Mahe and the village of Yanam). ____________________________________________________________________________________

On a conjoint reading of those notifications, it appears that for the whole of the State of West Bengal, the Collector of Customs (Preventive), West Bengal is the appropriate authority as mentioned in the notification No. 250 but notwithstanding such fact, by the very next notification published on the selfsame day, the area of Port of Calcutta, Dum Dum Airport, the area under the jurisdiction of Calcutta, Howrah and sought Suburban Corporations, so much of the Hooghly river as is down stream of the Northern limit of Calcutta Port, and all lands as are within 10 Kilometres of the high water mark at spring tide on either side of the river although are all very much within the State of West Bengal and the Central Government is aware of such fact, it decided to vest the Collector of Customs, Calcutta with the power to adjudicate the allegations of the violation of the Act arising out of those areas.

The conjoint effect of those notifications, in our view, is that except the area mentioned in Column No. 2(a) of the Notification No. 251-Cus.; the Collector of Customs (Preventive), West Bengal is the appropriate authority in respect of other areas, but so far the area mentioned in the later notification, namely, the Notification No. 251-Cus. is concerned, the Collector of Customs, Calcutta is the sole authority and as such, the Tribunal rightly quashed the adjudication proceedings on the ground of jurisdiction.

We are unable to accept the contentions of Mr. Mukherjee, the learned Counsel appearing on behalf of the Customs that the jurisdiction of the Collector of Customs (Preventive), West Bengal and that of the Collector of Customs, Calcutta are concurrent so far as the present case is concerned. The intention of the Central Government to confer concurrent jurisdiction to both those authorities cannot be inferred from the language employed in those notifications.

We, thus, find that the point of reference should be answered in favour of the respondents and thus, the Tribunal was quite justified in passing the order impugned. In the facts and circumstances, there will be, however, no order as to costs.

Pravendu Narayan Sinha, J.

I agree.