ORDER
Gowri Shankar, Member (T)
1. Appeal taken up for disposal with consent, after waiving deposit.
2. Ramdeo Jewellers imported and cleared from Chennai in 1987 automatic chain making machines. The machines were cleared at concessional rate of duty in terms of the exemption contained in Notification 159/86 which grants exemption to such machines, which are used in the manufacture of gems and jewellery by the registered exporters and others specified therein and used in processing or manufacture of jewellery for export, subject to the condition that the importer furnish an undertaking to the effect that the goods shall be used for the purpose cited above. Subsequently, these machines were found in the premises at Mumbai of the importer and seized by the officers of the Directorate of Revenue Intelligence in September, 1991. The notice issued to the importer proposed to deny the benefit of the exemption on the ground that its condition had not been complied with, and confiscation of the machines and penalty. Adjudicating on this notice, the Commissioner of Customs (Preventive), Mumbai, has ordered confiscation, demanded duty and imposed penalty. Hence this appeal.
3. The sole contention of the representative of the appellant is that since the machines were imported and cleared at Chennai, it is the Commissioner at Chennai who has power to order confiscation of the goods and demand duty. He relies upon the judgment of the Supreme Court in UOI v. Ram Narain Bishwanath – 1997 (96) E.L.T. 224 and the decision of the Tribunal in Kantilal Govindbhai Sagar v. CC – 2001 (133) E.L.T. 809.
4. The departmental representative supports the Commissioner’s order by relying upon the decision of the Tribunal in Engee Industrial Services P. Ltd. v. CC – 1996 (87) E.L.T. 152.
5. The Supreme Court’s judgment in UOI v. Ram Narain Bishwanath takes note of the fact that the customs authorities have a territorial-cum-functional jurisdiction and found that the customs authorities at West Bengal had no jurisdiction to adjudicate upon the goods imported at Paradip in Orissa. In Engee Industrial Services P. Ltd., a Bench of this Tribunal noted the judgment in UOI v. Ram Narain Bishwanath and Others which laid down that the Collector of Customs who does not have territorial jurisdiction over the place of import or clearance of imported goods cannot act against the order passed by the jurisdictional proper officer under Section 47 of the Act. It said that “the notice can be issued and the adjudication order passed only by a competent officer having territorial jurisdiction over the place of import or clearance.” It said that these principles cannot apply to clandestinely imported goods i.e. the goods in respect of which no order has been passed under Section 47. In such a case, it said, there is no assessment order passed by a proper officer having territorial jurisdiction over the place where the goods have been seized it said that either the proper officer having jurisdiction over the place of clandestine import or the proper officer can take action.
6. The goods under consideration by us have not been clandestinely imported. They have been legally imported and cleared after issue of an order under Section 47 of the Act by the Chennai Customs. It would also appear, although that the representative of the appellant was not able to confirm this, that the goods have been cleared after the undertaking stipulated in the notification regarding the use to which the goods had been furnished by the importer. Therefore, the Commissioner of Customs (Preventive) has no jurisdiction to order confiscation of the goods and demand duty which he finds arises from a contravention of a condition subject to which the goods were granted exemption at the time of importation by the proper officer at Chennai. It is the officer at Chennai who has jurisdiction, if he finds any contravention, to adjudicate upon the notice in accordance with law.
7. The appeal is allowed and the impugned order set aside. We make it clear that this order is no bar for the concerned officers at Chennai to proceed with and lake action in respect of the importer and the goods in accordance with law.