M/S. CENTRAL CABLES LIMITED, GOVIND DAGA, MANAGING DIRECTOR OF M/S. CENTRAL CABLES LIMITED AND MRS. MANISHA PANDE, PURCHASE OFFICER OF M/S. CENTRAL CABLES LIMITED Vs. THE UNION OF INDIA THROUGH THE SECRETARY, MINISTRY OF FINANCE, CENTRAL SECRETARIAT, THE COMMISSIONER CUSTOMS AND CENTRAL EXCISE, NAGPUR AND THE DEPUTY COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, NAGPUR

JUDGEMENT

(1.) BY this petition filed under Articles 226 and 227 of the Constitution of India, the petitioners pray for quashing of an order dated 25.11.1997 passed by Respondent No. 3 -Deputy Commissioner of Customs and Central Excise at Nagpur. By said order, Respondent No. 3 confiscated a machine (capital goods) Gravi Mix Magruire WSB 420, valued at Rs. 5,21,396/ - under Section 111(d) and (f) of the Customs Act, 1962 (hereinafter referred to as the Act), and in terms of its Section 125, gave option to pay fine of Rs. 1,30,000/ - in lieu thereof, in addition to payment of appropriate duty. He imposed penalty of Rs. 35,000/ - on petitioner No. 1 under Section 112(a) of the Act, of equal amount on Managing Director personally and Rs. 15,000/ - on Purchase Officer of Petitioner No. 1 -Company. The Managing Director is Petitioner No. 2 before this Court while the Purchase Officer is Petitioner No. 3. Respondent No. 1 is the Union of India while Respondent No. 2 is the Commissioner of Customs and Central Excise. This Court issued notice before admission on 29.01.1998 and then issued rule in the matter on 18.02.1998. The petitioners were permitted to pay due customs duty and the respondents were directed to release machine. The petitioners gave an undertaking to pay fine and penalty as imposed, in case they fail in the petition. On 19.03.1998, Division Bench of this Court modified that order and directed release of machine on payment of full amount of Customs duty and upon furnishing a Bank guarantee in the sum of Rs. 1,50,000/ -; subject to the same, an interim order staying the operation and effect of impugned order came to be granted. This order and arrangement continues till date. The petition was dismissed in default on 03.07.2006 and was restored subsequently.

(2.) WE have heard Shri Kothari, learned counsel for the petitioners and Shri Mishra, learned Assistant Solicitor General of India, for the respondents.

(3.) IN this background, Shri Kothari, learned counsel, submits that in the impugned order, independent operation of provisions of Section 7(a) of the Act has been overlooked. He submitted that the violation of Sections 33, 34 and 36 of the Customs Act, if any, is not by the petitioners but by the carrier i.e. Indian Airlines. He also submitted that the impugned order bases itself upon some material which did not form part of show cause notice and to that extent, is excessive. Lastly, he submitted that as value of machine exceeded Rs. Five lakh, the jurisdiction to take action was with the Commissioner of Customs at Mumbai and not with Respondent No. 3. However, the learned ASGI immediately pointed out that there is no such challenge in writ petition or even before Respondent No. 3 and a question which calls for verification of facts, cannot be allowed to be raised. We have, therefore, not permitted Shri Kothari, learned counsel, to advance arguments on this issue as there may be various delegations and notifications empowering Respondent No. 3 in the matter. Even otherwise, as the material on record is not sufficient to decide this contention, we are not inclined to decide it without affording due opportunity to the respondents.