2005 (12) TMI 423 - AT - Customs

Court Upholds Penalty of Rs. 50,000, Rejects Revenue's Appeal

The majority decision upheld the earlier order dated 30-4-2003 without recalling it. The appeal for enhancement of the penalty was dismissed, confirming ... Appellate Tribunal’s power - Jurisdiction of Appellate Tribunal - Penalty - Quantum of Issues Involved:1. Whether the earlier order dated 30-4-2003 should be recalled.2. Whether the appeal filed by the Department for enhancement of penalty should be remanded for fresh adjudication.3. Whether the department's appeal should be rejected without recalling the earlier order.Detailed Analysis:1. Whether the earlier order dated 30-4-2003 should be recalled:The Tribunal noted that the respondents' appeal was decided while the department's appeal was still pending. The Larger Bench decision in C.C.E., Chandigarh v. Standard Tapulin Industries - 2002 (143) E.L.T. 430 (Tri. - LB) was cited to recall the earlier order of the Tribunal dated 30-4-2003. The Tribunal emphasized that both appeals should have been heard together. However, the Member (Judicial) disagreed, stating that the Tribunal cannot recall an earlier settled order due to a mistake of non-mentioning the department's appeal. The Member (Judicial) referenced the Supreme Court's decision in Commissioner of Sales Tax v. Vijai Int. Udyog, which held that two cognate appeals should be decided together but did not authorize recalling an earlier order. The third Member (Judicial) agreed with this view, asserting that a co-ordinate Bench cannot act as if sitting in appeal over another Bench's decision.2. Whether the appeal filed by the Department for enhancement of penalty should be remanded for fresh adjudication:The department appealed for enhancement of the penalty amount considering the value of goods and duty involved. The Member (Technical) suggested remanding the matter to the Adjudicating Commissioner for fresh determination, arguing that both sides were aggrieved by the quantum of fine and penalty. However, the Member (Judicial) rejected this, reasoning that the confiscation under Section 111(j) of the Customs Act was not sound since the goods were removed with permission from the proper officer, thus fulfilling substantial requirements. Consequently, there was no justification for enhancing the penalty. The third Member (Judicial) concurred, noting that the earlier Tribunal order had already confirmed the penalty amount, and there was no cause for enhancement.3. Whether the department's appeal should be rejected without recalling the earlier order:The Member (Judicial) argued that the department's appeal for enhancement of penalty should be rejected as the confiscation was not justified, and the earlier Tribunal order had already dismissed the respondent's appeal against the penalty. The third Member (Judicial) agreed, emphasizing that the Tribunal could not recall the earlier order and that the penalty amount confirmed in the earlier order should stand.Majority Order:The majority decision, aligning with the Member (Judicial), concluded that the department's appeal should be rejected. The earlier order dated 30-4-2003 was not recalled, and the appeal for enhancement of the penalty was dismissed, confirming the penalty amount of Rs. 50,000/-. The final order was pronounced in Court on 5-4-2006, rejecting the Revenue's appeal.