S. Kalyanam, Member (J)

1. The above appeals have been filed against the impugned order of the Collector of Customs Central Excise, Cochin, dated 9-1-1991 levying a penalty of Rs. 20,000/- on each of the appellant under Section 112(a) of the Customs Act, 1962, the Act for short.

2. Proceedings were instituted against one Zakeer Hussain and others in connection with seizure of 9 gold biscuits of foreign origin each weighing 116.600 gms valued at Rs. 3,56,796/- kept concealed in a washing machine of Japan make resulting in the impugned order cited supra. In the present case, I am concerned only with the above two appeals. Appellant C.K. Kunhammed is alleged to have entrusted the said washing machine at Doha to one P.C. Mohammed for onward transport to India through one Zakeer Hussain. Appellant C.K. Moosa is the brother of appellant C.K. Kunhammed and he went along with another Yusuf in the Jeep of one K. Yousuf to collect the washing machine and gold from Zakeer Hussain who had brought it to India from abroad.

3. Shri Ratna Singh, the learned Senior Advocate at the outset submitted that so far as C.K. Kunhammed is concerned admittedly he was in a foreign country Doha at the relevant time and continues to be there even now and therefore he cannot be said to have committed any offence under the Customs Act, 1962. Collector of Customs and Central Excise, Cochin does not have jurisdiction to institute any proceedings against C.K. Kunhammed who admittedly was in a foreign country not only at the alleged time of commission of offence but also later and till date. This factual position is admitted by the Department. Even if C.K. Kunhammed had entrusted gold biscuits to some one in a foreign country this could not make for an offence under the Customs Act, 1962 nor would he be amenable to the jurisdiction of the Collector of Customs Central Excise, Cochin. It was therefore urged that the question of jurisdiction goes to the root of the matter and would vitiate the impugned order so far as levy of penalty on appellant C.K. Kunhammed is concerned under the Customs Act, 1962.

4. So far as appellant Moosa is concerned it was urged that though he gave an inculpatory statement the same was retracted and therefore penalty is not leviable.

5. Shri Jayaseelan, the learned DR submitted that inasmuch as the question relating to jurisdiction was not pleaded before the adjudicating authority and is raised for the first time, the matter may be remanded for consideration as per law. Regarding Moosa it was submitted that there is clear evidence connecting him with the commission of offence.

6. I have carefully considered the submissions made before me. So far as appellant C.K. Kunhammed is concerned, admittedly he was abroad not only at the alleged time of commission of offence but also continued to be there even later to the commission of offence and till date. Assuming for the purpose of argument that appellant C.K. Kunhammed had entrusted the gold biscuits in a foreign country, Doha that would not be an offence coming within the mischief of the Customs Act, 1962. The provisions of the Act extend only to the whole of India and not beyond India. Apart from it, the Collector of Customs Central Excise, Cochin also has no jurisdiction under law to try a person in respect of something which was committed beyond India and in a foreign country which will not come within the mischief of the provisions of the Customs Act, 1962.1 have given my anxious consideration to the plea of the learned D.R. for remitting the matter. Inasmuch as inherent want of jurisdiction and also non-applicability of the provisions of the Customs Act, 1962 go to the root of the matter, no purpose will be served by remanding this issue, as the legal position is well-settled and does not admit of any doubt or controversy. In this context I may usefully refer to Sections 3 and 4 of the Indian Penal Code where express provisions have been incorporated extending the applicability of