Issue: -Whether the order passed by the former Comm. or the latter Comm. will prevail if same SCN is assigned for adjudication to 2 Commissioners by different orders of the Board?
Brief Facts: -Same SCN were assigned to 2 commissioners, one to Commissioner of Customs (Adjudication) Mumbai vide order dated 2.8.2005 to adjudicate Show Cause Notice dated 29.11.2004 and for the same purpose, under Notification no. 112/05- Cus. (NT), dated 28-12-2005, Commissioner of Customs (Import) Nava Sheva was also appointed. The former Commissioner passed order in original on 31-12-2007 while the latter passed order in original on 18-3-2008.
Reasoning of the Judgment: - The case referred to was of Shri Rajesh Totla v. Commissioner of Customs Mumbai -2001 (138) ELT 398 (Tri. –Mumbai), where there was similar question and out of the two orders of adjudication passed in the given case at different points of time, the second one was non est.
The Board may appoint such persons as it thinks fit to the Officers of Customs u/s 4(1) of the Act. The Board can even impose and stipulate conditions and limitations u/s 5 of the Act that are to be observed while exercising the powers and discharging the duties conferred/ imposed on them. Both the Notifications were issued under Section 4(1) of the Act. The assignment dated 28-12-2005 superseded the earlier assignment dated 2-8-2005. So it can be said that after 28-12-2005 the Commissioner of Customs (Adjudication) Mumbai had no jurisdiction to adjudicate the show cause notice that is the jurisdiction to adjudicate remains with Commissioner of Customs (Import) Nava Sheva appointed by the Board. The order dated 31-12-2007 passed by the Commissioner of Customs (Adjudication) Mumbai in adjudication of the subject Show Cause Notice is without jurisdiction and requires to be set aside for want of jurisdiction.
Decision: -Appeals allowed on ground of jurisdictional infirmity.
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