Page 223 - ELT_15th August 2020_Vol 373_Part 4

2020 ] SEVILLE PRODUCTS LTD. v. COMMISSIONER OF CUSTOMS, NEW DELHI 557

(299) E.L.T. 116 (Tri. - Mumbai). Therefore, he submits that imposition of penalty
on the appellant is not correct and impugned orders are to be set aside.
8. On the other hand, Learned Authorised Representative supported
the decision of this Tribunal in appellant’s own case affirming the penalty on the
appellant.
9. Heard the parties considered the submissions.
10. After hearing both the sides, I find that in this case penalty has been
imposed on an exporter who is located in Dubai, UAE for misdeclaration of
goods enabling Indian importers to evade payment of customs duty by
misdeclaring the value of imported goods.
11. For better appreciation, the provisions of the Customs Act, 1962 is
relevant to the facts of the case are to be examined.
12. Section 1 of the Customs Act, 1962 defines that the act may be called
as Customs Act, 1962. Section 1(2), it extends to the whole of India.
13. India has been defined under Section 2(27) of the Act which says
that India includes the territorial waters of India.
14. Therefore, this Act is applicable to whole of India including the ter-
ritorial waters of India. The Learned Counsel for the appellant have heavily re-
lied on the decision of HI Lingos (supra) to say that the Customs Act having force
only within whole of India and with no provisions incorporated therein to invest
any extra territorial jurisdiction, and with codified law of the Indian Parliament
having applicability only within India, the powers of the Collector exercising his
jurisdiction under the provisions of the Customs Act, would not stand extended
to impose any personal penalty on the party/firm/company who are beyond the
Indian territory. The said decision has been affirmed by the Hon’ble Apex Court
in 1998 (95) A47 (S.C.). Further, this Tribunal in the case of Relax Safety Industries
(supra) held that “the Collector finds that he was a person living in the United
States who was instrumental in supplying these goods and in the misdeclaration
of these goods. The contention on behalf of the appellant is that he was a resident
of United States and the provisions of the Customs Act would not apply to him.
This contention has been accepted as the Customs Act, 1962 does not have extra-
territorial jurisdiction”.
15. Further, I find that in appellant’s own case, after considering the
decision of HI Lingos (supra) and other decisions cited by the appellant before me
also has imposed penalty on the appellant.
16. In view of this, I find that they are contrary decision on this issue.
Therefore, it would be in the interest of justice to refer the matter to Larger Bench
of this Tribunal to decide the issue, which is as follows :-
(i) Whether penalty under Section 112(a) of the Customs Act, 1962 can
be imposed during the period 2012-13 to an exporter who has mis-
declared the goods located in Dubai, UAE or not?
17. The Registry is directed to place the matter before the Hon’ble Pres-
ident with a request to constitute a Larger Bench to decide the above issue.
(Pronounced on 5-3-2020)

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EXCISE LAW TIMES  15th August 2020  223