2004 PLP (Trib (PTD)

2. Facts leading to this case are that vide bill of entry vide I.G.M. dated 12‑9‑2001 appellant imported Zine Dust from India and got it cleared under PCT heading 7903.1000, but during the post audit it revealed that the goods imported by the appellant are Indian origin of Messrs Maharajha Metal Industries, Bangalore (India), as such show cause notice, dated 12‑1‑2002 was. issued. which was replied by the, appellant..

3. In reply to show‑cause notice it is, pleaded by, the appellant that goods imported by him are not Indian origin, but are Iran origin and have been shipped from the port of Bandar Abbas, Iran. As such they have not contravented any Import Policy Order 2001‑2002 but during adjudication proceedings it was observed that L/C was opened in the name of Messrs Maharajha Metal Industries, Bangalore (India), so also in the bill of entry the name of consigner is shown as Messrs Maharajha Metal Industries, Bangalore (India). Bill of lading also pertain the same name therefore, it is undeniable fact that the goods imported by the appellant are not Indian origin. With these observations order‑in‑original was passed.

4. During course of arguments the main points urged by the learned counsel for appellant is that the show‑cause notice and the adjudicating proceedings conducted by the Deputy , Collector (Adjudication) are in against to the directions given by C.B.R. vide S.R.O. 448(I)/2000, dated 1‑7‑2000 which specifically debars the adjudicating officer of Collectorate of Customs, Sales Tax and Central Excise (Adjudication) to proceed with the cases mentioned in clause 2 . of above referred S.R.O, and as the present case comes under the cover of sub‑clause (d) of clause 2 of S.R.O. 448(1)/2000 which reads as under:‑‑ "Cases involving technical violation of import/export restrictions without the involvement of any evasion of duty or taxes". Therefore, the whole proceedings conducted by Deputy Collector, Adjudication are illegal and nullity in the eye of law and are liable to be set aside. In reply to this legal plea no satisfactory ground has been raised by the departmental representative, he mostly stresses on the ground that goods imported by appellant are ban items therefore, the adjudicating proceedings conducted against him were just and proper.

5. Irrespective of the factual aspects of the case, that appellant had imported the consignments from India in contravention of import and export policy rules, the first point, which is to be considered in the matter, is:‑‑ (i) Whether the respondent had jurisdiction to proceed against appellant in presence of this specific, sub‑clause (d) of Clause (2) of S.R.O. 448(I)/2000.

6. After debarring the Collectorate of Customs, Sales Tax and Central Excise (Adjudication) by S.R.O. 448(1)/2000, dated 1‑7‑2000 to proceed with the particular cases as is specified in clause 2 and, in absence of any other notification empowering any other authority to conduct such cases the jurisdiction lies with C.B.R. But in the present case as has been pointed out show‑cause notice was issued by Deputy Collector (Adjudication) so also the order‑in‑original was passed by the Deputy Collector (Adjudication), which is a clear violation of S.R.O. 448(I)/2000, issued by the C.B.R. In such circumstances, it has been observed number of times that it is an elementary principle that if mandatory conditions for the exercise of jurisdiction by a Court, A Tribunal or authority are not fulfilled, then the entire proceedings, which follow, become illegal and suffer for want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffers from illegality and are without jurisdiction. With these observations, I am of the view that the order passed by Deputy Collector (Adjudication), dated 12‑2‑2002 was without jurisdiction as such the order is hereby set aside, Appeal is allowed.

7. This order will apply Mutatis Mutandis on Customs Appeal No.339 of 2002, dated 12‑3‑2002 in the case of Messrs Fair Brothers International, Karachi. C.M.A./87/Tax (Trib.) Appeal allowed.