2005 (12) TMI 423

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....e should be heard together with the appeal filed by the respondents. 2. This is a case involving duty of Rs. 1,05,75,932/-. The impugned goods valued at Rs. 6,77,31,626/- were confiscated by the Adjudicating Commissioner. While confirming the duty and confiscating the goods, he has imposed a redemption fine of Rs. 1 Lakh and penalty of Rs. 50,000/-. The appeal by the respondent was against such fine and penalty. The appeal by the department is for enhancement in the penalty amount considering the value of goods and duty involved. 3. In view of the fact that the respondent's appeal was decided while the department's appeal was pending, following the decision of the Larger Bench in the case C.C.E., Chandigarh v. Standard Tapulin Industries - 2002 (143) E.L.T. 430 (Tri. - LB), we recall the earlier order of the Tribunal dtd. 30-4-2003 and since both sides are aggrieved by the quantum of fine and/or penalty determined, we set aside the impugned order in so far as it relates to determination of fine and penalty and remand the matter to the Adjudicating Commissioner for fresh determination. He shall give an adequate opportunity of hearing to both sides before passing a fr....

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....ing the special leave petition, their Lordships passed the following order :           "It appears that against the orders of the first appellate authority both the assessee and the Revenue filed appeals before the Tribunal. The assessee's appeal in the Tribunal was taken up first and allowed. Subsequently, when the Revenue's appeal came up for hearing, it was dismissed in view of the order in the assessee's appeal. The learned counsel for the petitioner-Revenue says that, as held by this Court in Commissioner of Sales Tax v. Vijai Int. Udyog [1985 (59) S.T.C. 49], both the appeals ought to have been heard together. It is, however, not stated, nor alleged by the petitioner, that the appeal of the assessee was heard ex parte, i.e. without hearing the Revenue, if, indeed, the Revenue was heard while disposing of the assessee's appeal it was the duty of the counsel appearing for the Revenue to have appraised the Tribunal of the fact that they have also filed an appeal which should also be heard along with the assessee's appeal. If the counsel has not done so the Tribunal cannot be blamed. The special leave petition is dismissed". &nbs....

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....d down by the Apex Court and the Larger Bench, cannot authorize the recall of an earlier order dated 30-4-2003 of a Bench. The Larger Bench's decision, relied upon by the ld. Member (Technical), would only permit this Bench, to decide the issue in Revenue's Appeal, on merits, I, therefore, proceed to decide the same on merits. 7.  It is an admitted fact that the respondent is an assessee, who had imported the goods, and had intended to Warehouse under the provisions of the Customs Act, 1962. Pursuant to the same, they had to file an into Bond Bill of Entry. A request was to be filed with necessary applications and Bonds under the Warehouse (Removal) Regulations 1963, to obtain permission to transport the imported goods from the Port of Import to the Warehouse licensed at the factory premises in Nagpur. That appears to have been complied. It is also on record that due to inability to physically lift the goods and Warehouse the same by depositing them at their first floor Bonded Warehouse premises at Nagpur, and the need to utilize the goods in their continuous production programme, they diverted these goods, which were still under transit Bond and consumed the same. The fact....

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....ble Single Member on the respondent's appeal confirming the confiscation, fine and penalty should be recalled, and whether the appeal filed by the Department on the basis of Review order passed by the Board for enhancement of penalty and the appeal filed by the respondent for setting aside confiscation, fine and penalty should be remanded together for fresh adjudication as held by the Hon'ble Member (Technical)? Or 2.             Whether the department's appeal shall be rejected, without recalling the earlier order dated 30-4-2003 passed by the Hon'ble Single Member, on the grounds that the appeal for enhancement of penalty is not justified as the confiscation is not sound and that the appeal filed by the respondents has been dismissed as held by the Hon'ble Member (Judicial)? (Pronounced in Court on 16-12-2005) Sd/- (T. Anjaneyulu) Member (J)   Sd/- (Chittaranjan Satapathy) Member (T) 11. [Order per : Archana Wadhwa, Member (J)]. - I have heard Shri Vimlesh Kumar, ld. SDR, on the point of difference referred to me as a third Member. Nobody has appeared on behalf of the Respondent....