2000 (1) TMI 295

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.... the importer. The Department, however, took the view that the goods were of agricultural origin and could be imported only under specific import licence. No specific import licence in respect of the goods having been produced by the importer, the Department treated the import as unauthorized and the goods as liable to confiscation under the Customs Act. They also treated the importer as liable to penal action under the Customs Act. The matter was eventually adjudicated by the Additional Collector of Customs as per order dated 3-12-1993, whereby the goods were confiscated and the appellant was allowed to redeem the same on payment of Rs. 18,000.00 as redemption fine. The Additional Collector, further, imposed a personal penalty of Rs. 5000.....

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.... as stated in their appeal. The ld. Advocate further submits that the lower appellate authority has no jurisdiction or power to leave the question of enhancement of fine and penalty (as prayed for by the Department in their appeal before that authority) in the hands of the Department under Section 128A of the Customs Act. The further submission of the ld. Advocate is that it was incumbent upon the Commissioner (Appeals) to issue a show-cause notice to the party under the first proviso to sub-section (3) of Section 128A of the Customs Act before passing final order in the appeal of the Department wherein the only prayer was for enhancement of redemption fine and penalty. The lower appellate authority has passed the impugned order without doi....

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.... redemption fine and penalty in the hands of the Department. The ld. DR has construed the word 'Department' used (by the lower appellate authority) in this context as the adjudicating authority while the ld. Advocate has maintained that the word 'Department' means nothing but the Department. Whether it be the Department or the adjudicating authority, one thing is clear that the lower appellate authority has abdicated his power of enhancing penalty and fine in favour of somebody else. Such power is a power which the lower appellate authority did have under Section 128A of the Act. Even if the Commissioner (Appeals) had wanted to enhance the penalty and fine himself, he could have done so only after issuance of a show-cause notice as required....