TaxTMI 
TaxTMI 
2010 (3) TMI 494
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.... rough, uncut, polished and manufactured diamonds. The Petitioners, in due course of their business, imported various rough and uncut diamonds from Sri Sentik General Trading FZE, Dubai, UAE. The said diamonds were received under the various invoices during the period from April to May, 2003. On presentation of the necessary bills of entry and other documents, the said diamonds were cleared for home consumption. 6. The Customs Department issued a show-cause notice dated 29-12-2003 to the Petitioners under Section 124 of the Customs Act, 1962 inter alia; calling upon the Petitioners to show cause why action should not be initiated against them for confiscation of the said diamonds as well as levying penalty. 7. The Petitioners replied ....
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....sions of Section 111(d) & (m) of the Customs Act, 1962 read with Rule 11(1) of the Foreign Trade (Regulation) Rules, 1993. Since they are not available for confiscation, I keep this fact in mind while imposing the penalty. 4.4 I order absolute confiscation of 424043.35 carats of rough diamonds whose declared value was US $5867761.19 equivalent to Indian Rs. 27,63,71,552.04 imported vide Bill of Entry Nos. 101380, 101403, 101391, 10410, 101398, 101386 all dated 19-6-2003 under the provisions of Section 111(d) & (m) of the Customs Act, 1962 read with Rule 11(1) of the Foreign Trade (Regulation) Rules, 1993. 4.5 I order absolute confiscation of 40711 carats of rough diamonds valued at Rs. 1....
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....on 112(a) of the Customs Act, 1962. This order is issued without any prejudice to any other action that may be taken under this Act or under any other Act which is in force." 8. Being aggrieved by the aforesaid order dated 28-2-2007, the Petitioners preferred an appeal before the Customs, Excise & Service Tax Appellate Tribunal (WZB), Mumbai. In the said appeal, the Petitioners preferred an application praying for stay of the recovery of penalty and claimed waiver of pre-deposit. The Appellate Tribunal vide its order dated 17-9-2007 stayed the recovery and also waived the pre-deposit of penalty. 9. The Petitioners repeatedly requested the Respondents to return their bills of entry and other documents in respect of the Case No. SD/I....
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....red and therefore, the same were physically not available for seizure, as such penalty was imposed on the Petitioners. He further submits that the order-in-original dated 28-2-2007 is challenged before the Appellate Tribunal at the instance of the Petitioners and the operation thereof has been stayed. According to him, there is no appeal preferred on behalf of the Respondents challenging adverse part of the order-in-original dated 28-2-2007, as such it has become final and conclusive against the Respondents. In his submission, if the appeal is dismissed by the Tribunal, the Petitioners at the most will have to pay penalty as imposed by the Commissioner of Customs. No further adverse order can be passed against the Petitioners. He, therefore....
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....the Director of Enforcement is the necessary party in the present case. He further submits that the Petitioners overvalued the imported goods. By this modus they want to export extra Indian currency without disclosing it in their books of accounts. According to him, in view of these facts and circumstances, the petition is liable to be dismissed with costs. Consideration : 12. Having heard both parties, it is to be noted that the Commissioner of Customs imposed penalty on the Petitioners vide its order-in-original dated 28-2-2007. The said order-in-original is a subject matter of challenge at the instance of the Petitioners before the Appellate Tribunal. The Appellate Tribunal vide its order dated 17-9-2007 has stayed the effect, oper....
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....t is not open to the Tribunal to raise any ground which will work adversely to the Appellant and pass an order which makes his position worse than what it was under the order appealed against, if the Department has not appealed from such order. The word "thereon" in the expression "may pass such order thereon as it thinks fit" means on the grounds raised in the appeal, and the words of the section are not wide enough to include a power to enhance an assessment without an appeal by the Revenue. 16. If one turns to the provisions of Section 129 of the Customs Act, 1962, the Tribunal has no jurisdiction to pass an order, so as to permit a ground to be raised by the Respondent which, if allowed, would made the position of the Appellant worse....