Page 177 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] CANPEX CHEMICALS PVT. LTD. v. CC. (EXPORT), NHAVA SHEVA, RAIGAD 399

Act, 1962 which was allowed partly, by the letter referred supra, to the extent of
goods being uncleared. Aggrieved by lack of response for relinquishment of the
remaining portion, appeal was filed before Commissioner of Customs (Appeals),
Mumbai II, Jawaharlal Nehru Customs House, Nhava Sheva who, instead of re-
stricting disposal to the finding - for or against - the limited grievance thereon,
chose to invoke powers under proviso to Section 128(3) of Customs Act, 1962 for
proposing rejection of their application for relinquishment and for detriment
arising from Section 111 and 112 on the goods lying under Customs control. Ac-
cording to Learned Counsel, the first appellate authority also directed Additional
Commissioner of Customs, Nhava Sheva to draw samples of the uncleared
goods and to subject those confiscation under Section 111 of Customs Act, 1962
as well as to impose penalty under Section 112 of Customs Act, 1962 should the
goods be different from that declared in the bills of entry. It was further held that
the goods already cleared, which were beyond the scope of confiscation, were
also not eligible for relinquishment.
3. According to Learned Counsel, appellant has been left in worse posi-
tion than they were in before filing of the appeal on the limited grievance per-
taining to the two containers already cleared. It was also pointed out that the first
appellate authority was not empowered to invoke the provisions of Customs Act,
1962 to initiate fresh proceedings that had not been contemplated in any pro-
ceedings initiated for disposal by the original authority and that re-visiting of the
decision of the competent authority under Section 26A of Customs Act, 1962 in
favour of appellant was in excess of jurisdiction.
4. We have heard Learned Authorised Representative who submits
that the first appellate authority had merely directed the drawal of samples and
fresh decision on the claim for refund arising in consequence of relinquishment
under Section 26A of Customs Act, 1962 and for penal action arising from
misdeclaration ascertained therefrom.
5. We find that the issue before the first appellate authority in the ap-
peal of the importer was limited to the non-disposal of the claim of appellant, in
relation to the goods already cleared, for relinquishment, and refund, under Sec-
tion 26A of Customs Act, 1962. In such a situation, it was not open to the first
appellate authority to revisit a decision-taken in favour of appellant save on ap-
peal authorised by Commissioner of Customs. That apparently has not occurred
yet. Moreover, proviso to Section 128(3) of Customs Act, 1962 empowers the is-
sue of show cause notice only for enhancing penalty or any other detriment or
for rejection of refund sanctioned by the original authority. Proceedings that lie
before the original authority can be initiated only under Section 28 of Customs
Act, 1962 or under Section 124 of Customs Act, 1962 - neither of these envisages
Commissioner of Customs (Appeals) as the ‘proper officer’. Consequently, the
notice contemplated by proviso to Section 128(3) of Customs Act, 1962 is limited
to enhancement or reduction, as the case may be, within the confines of the no-
tice that commenced proceedings leading to the appeal. In other words, the ex-
tent of enhancement or reduction was limited to such as were proposed in the
original notice; there is no empowerment in Section 128 of Customs Act, 1962 for
a new proceedings or cause of action. Such would also not constitute an en-
hancement and, therefore, the issue of show cause notice leading to the specific
direction in the impugned order is beyond the pale of law.
EXCISE LAW TIMES  1st May 2020  177