Operative appellate order on confiscation required refund where no stay was granted despite pending challenge.

Where a Tribunal's order setting aside confiscation and personal penalty remained unstayed, that order continued to operate and the consequential refund could not be withheld merely because the Revenue's challenge was pending. The lower appellate authority had no basis to remand the matter for fresh decision on the strength of a circular instead of giving effect to the subsisting appellate order. Once the adjudication order had been set aside, the confiscated amount was required to be refunded, and retention of the amount was unjustified. The remand order was therefore unsustainable and refund was directed to be sanctioned in accordance with the Tribunal's earlier order.

---

---

Issues: Whether refund of the confiscated amount was liable to be sanctioned to the appellant when the Tribunal's earlier order setting aside confiscation and penalty had not been stayed by the High Court.

Analysis: In the absence of any stay of the Tribunal's final order, the appellate order setting aside confiscation of Indian currency and personal penalty remained operative. The Commissioner (Appeals) had no basis to remand the matter for fresh decision merely because the Revenue's challenge was pending, particularly when the lower appellate authority sought to rely on a circular instead of giving effect to the subsisting tribunal order. Once the order of adjudication had been set aside, the amount could not be retained and was required to be refunded.

Conclusion: The refund was rightly payable to the appellant and the remand order was unsustainable.

Final Conclusion: The appeal succeeded and the impugned order was set aside, with refund directed to be sanctioned in accordance with the Tribunal's earlier order.

Ratio Decidendi: When an appellate order setting aside confiscation or penalty remains operative and no stay is granted, the consequential refund cannot be withheld or remitted for reconsideration merely because a further appeal is pending.

---