Page 222 - ELT_15th August 2020_Vol 373_Part 4

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4. He further submits that the Customs Act, 1962 having the territorial
jurisdiction only to whole of India and not beyond the Indian territory. There-
fore, in Customs Act, there is no provision extending the operation of the Act
beyond the territory of India during the relevant period on the appellant. Admit-
tedly, the appellant is an overseas supplier having its business in Dubai, UAE
and having no business concern or presence in India. Further, the CEO of the
appellant, who appeared before the DRI during investigation and tendered her
statement, is also a Non-Resident Indian. Therefore, the provisions of Customs
Act cannot be extended to them. Once it is held that the provision of Custom Act
are not applicable to the appellant, imposition of penalty on the appellant under
Section 112(a) of the Customs Act, 1962 is not sustainable.
5. To support his argument he relied the decision of Hon’ble Supreme
Court in British India Steam Navigation v. Shanmughavilas Indus reported at 1990
(3) SCC 481 = 1990 (48) E.L.T. 481 (S.C.). Further, relied on the decision in the
case of Relax Safety Industries v. CC, Mumbai - 2002 (144) E.L.T. 652 (Tri. - Mum.).
He also placed reliance on the following decisions :-
(i) HI Lingos Co. Ltd. v. CC, Bombay - 1994 (72) E.L.T. 392 (T) affirmed
by Supreme Court reported at 1998 (95) E.L.T. A147 (S.C.).
(ii) Advance Exports v. CC, Kandla - 2007 (218) E.L.T. 39 (Tri. - Ahmd.)
affirmed by Supreme Court at 2015 (325) E.L.T. 462 (S.C.).
(iii) C. K. Kunhammed v. CCE & C - 1992 (62) E.L.T. 146 (T).
(iv) Shafeek P.K. v. CC, Cochin - 2015 (325) E.L.T. 199 (Tri. - Bang.)
(v) Ankit Gopal Agarwal v. CC, Cochin - 2009 (234) E.L.T. 646 (Tri. -
Bang.)
(vi) Guru Electronics Singapore v. CC - 2009 (240) E.L.T. 56 (Tri. - Bang.)
He further submits that in appellant’s own case reported in 2020 (1) TMI 905 (Tri.
- Mum.SM) = 2020 (372) E.L.T. 610 (Tri.-Mumbai), the said decision is per incuri-
um wherein it has been held that Customs Act has extra territorial jurisdiction
and accordingly penalty under Section 112 is imposable on the appellant.
6. It is his submission that the judgment has been passed by the single
Member by ignoring the correct position of laws enunciated by the previous Tri-
bunal Division Bench judgment which were brought to his notice during the
course of argument. Learned Single Member has ignored the judicial precedents
of Relax Safety Industries (supra) which decides the issue conclusively in favour of
the appellant. Hence, the said decision of this Tribunal in appellant’s own case is
per incurium and does not deserve any consideration in the present case. The de-
cision in appellant’s own case has been discussed the municipal law, penal laws
such as Indian Penal Code, etc. and articles to hold that the Customs Act has ex-
tra territorial jurisdiction. It is submitted that the discussion on all these laws are
irrelevant when Customs Act under Section 1 specifically defines the application
of this statute. The discussion on municipal law and other laws may be relevant
in those cases where the relevant act is silent on the territorial jurisdiction itself,
there was no occasion for the Learned Single Member to resort to other enact-
ments and/or articles. Hence, the findings are irrelevant. Further, the Learned
Single Member has ignored the decision of the Apex Court in the case of HI Lin-
gos Co. Ltd. (supra).
7. Further, the Learned Counsel relied on the decision of this Tribunal
in Maheshwari Solvent Extraction Ltd. v. Commr. of C. Ex. Reported at Nagpur, 2014
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