ORDER

Per Shri P.K. Desai: Though all the Four appeals arise out of different Orders in original as indicated below, with the common issue involved, all of them have been argued together and are being disposed of by this Common order.

2. Appeal Nos. C/480/95, C/486/95 and C/491/95 are against the Orders-in-original CAO Nos. 53/95,54/95 and 62/95 of the Collector of Customs - II Bombay, whereas Appeal NO. C/1810/95 is against the Order-in-Original No. 36/cus/95 of the Collector - II of Central Excise & Customs at Pune.

3. All the Appellants engaged in manufacture of Power Capacitors, Imported Aluminium Foils containing more than 90% of Aluminium and paid the Customs Duty at the concessional rate vide Notification No. 345/96 dt. 16.6.1986. the foils so imported, which had suffered duty under concessional rate, had to be used in manufacture of Plastic Film Capacitors. On information received, investigations were carried out, which revealed that the foils so imported were issued in manufacture of Mixed Dielectric Capacitors and Bombay Customs also obtained opinion from prominent Institutions namely, The Bhabha Atomic Research Centre, The Indian Institute of Technology and The Electronic Regional Test Laboratory, to the effect that Plastic Film Capacitors and Mixed Dielectric Capacitors were distinct, it was felt that the importers had wrongly availed the benefit of concessional rate of duty and were liable to pay the differential duty. After due investigation and recording of statements of the persons concerned, Show Cause Notices were issued for the matters adjudicated by the Collector of Customs II at Bombay, the Show Cause Notices have been issued by the Collector of Central Excise & Customs, Bombay -III and for the matter adjudicated by Collector II of Central Excise & Customs, Pune, the same was issued by the Collector of Central Excise and Customs, Pune.

4. The Importers/Noticees contested their respective Show Cause Notices contending that there was no contravention of the terms of Notification No. 345/86 and claimed the demand as hit by the period of limitation. It was also contended that the Show Cause Notices were issued without jurisdiction and hence were nullity.

5. The Adjudicating Authorities negatived all the contentions raised and held that there was a diversion of imported material and that use thereof in manufacture of Mixed Dialectic Capacitors could not be construed as the use in Plastic Film Capacitors. The proceedings intimated were held as legal and valid and the demands raised were confirmed with imposition of personal penalties vide Section 112(a) of the Customs Act.

6.1 Dr. N.R. Kantawala, the Ld. Advocate for the Appellants has submitted that there is a preliminary objection as to the jurisdiction, in as much as the import is through the Bombay Port and what is alleged against the Appellants is wrong availment of exemption from payment of full Customs Duty, which has already been granted by the Bombay Customs and now the demand for differential duty is raised by the Collector of Central Excise, Bombay-in who has been simply designated as Collector of custom vide Notification No. 58/92 and could at the best perform such functions, only within his own Jurisdiction, whereas here, the allegation begin the one which has allegedly occurred beyond his jurisdiction he could not have issued the Notice. He has pleaded that the demands raised being governed by Section 28 of the Customs Act, only the Proper officer" can issue the notice as per the definition of "proper officer as given under section 2(34) of the Act, the officer must have been assigned those functions by the Board. Amongst other-decision, the has referred to he decision of Karnataka High Court in Devilog Systems India V/s. Collector of Custom, 1995 (76) ELt 520 (Kar). He also submits that Madras High Court has however held some contrary view.

6.2 The Ld. Advocate has further pleaded that so far as appellants in Appeal No. C/486/95 and C/491/95 are concerne