TaxTMI 
TaxTMI 
2006 (3) TMI 158
X X X X Extracts X X X X
X X X X Extracts X X X X
....the order in original of the second respondent dated 24-8-1998 was correct in law in once again entertaining an appeal against the very same order. 3. Whether the first respondent's order violates the principles of res Judicata laid down in Section 11 C.P.C. and more so explanation IV. 4. Whether the second respondent could in law be considered an aggrieved person in view of the judgments of this Honourable Court reported in 1994 (1) Law Weekly page 509 and 2004(1) Current Tamil Nadu Times page 187. 5. Whether the order of the first respondent imposing penalty is contrary to the decision of the Division Bench of the Bombay High Court reported in 2004 (163) E.L.T. 304 (Bom.) and the provisions of Section 143(2) of the Customs Act. 6. Whether the first respondent has in law correctly interpreted the provisions of Sections 110, 111 and 112 of the Customs Act. 7. Whether the first respondent was correct in law in applying the provision of Section 114A of the Act, which provision was not on the statute at the material point of time having been introduced into the by Finance (No. 2) Act, 1996 (33 of 1996). 8. Whether the first respondent has correctly applied the law of limitation....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tition. 2.5 In the meanwhile, by an order dated 2-8-1999, the Central Board of Excise and Customs (CBEC), initiated proceedings invoking powers conferred under Section 129D for imposing penalty under Section 112(a), 114A of the Act for the alleged violation to Section 111A of the Act in relation to the import of 'Whole Body CT Scanner' by the appellant in the year 1990-91 and ultimately finding that the appellant was not entitled for the benefit of the Notification No. 64/88, dated 1-3-1988, the Board, under the provisions of Section 129D(1) of the Act, directed the Commissioner of Customs to apply to the Customs, Excise and Gold (Control) Appellate Tribunal, to determine the following points : (i) Whether in the facts and circumstances of the case read with subject show cause notice and especially when the importer has consciously evaded customs duty, the order of the Commissioner is Legal, correct and proper so far as it relates the non imposition of penalty on the importer; and (ii) Whether by an order passed under Section 129B of the Act, the Tribunal should modify the order and pass an order imposing appropriate penalty on the importer under Section 114A or Section 112(a) o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ace any materials before us as to the cancellation of the bond executed under Section 143 of the Act. On the other hand, it is an admitted fact that the impugned imported goods was provisionally released by the authorities concerned without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 and on execution of a bond dated 20-6-1991 and later it was held that the appellant was not entitled for the benefit of the said Notification dated 1-3-1988. For the reasons already mentioned in the order dated 5-8-2003 of the Customs Excise and Service Tax Appellate Tribunal, referred to above, and since the imported goods was not available for confiscation, the imposition of redemption fine to the tune of Rs. 23,61,039/-, cannot be questioned. 4.3.1 That apart, in the decision relied on by the learned Counsel viz., Bussa Overseas and Properties P. Ltd. v. C.L. Mahar, Asstt. C.C., Bombay - 2004 (163) E.L.T. 304 (Bom), the Bombay High Court in clear terms has held as follows : "7...........The power to levy penalty is not dependant upon availability of the goods imported or exported. The power to levy penalty arises because the importer or exporter has done or omitted an act in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the appellant by itself would not disable the authorities to initiate action under Section 129D to impose penalty under Section 112(a) of the Act. 5.1 The other questions raised by the learned Counsel for the appellant are : "1. Whether the first respondent was correct in law in entertaining an appeal preferred by the second respondent against its own order. 2. Whether the first respondent having by its order No. 763 of 2003, dated 5-8-2003 confirmed the order in original of the second respondent dated 24-8-1998 was correct in law in once again entertaining an appeal against the very same order. 3. Whether the first respondent's order violates the principles of res judicata laid down in Section 11 C.P.C. and more so explanation IV. 4. Whether the first respondent has correctly applied the law of limitation?." 5.2. In this regard it is apt to refer Sections 129A and 129D of the Act : "129A. Appeals to the appellate tribunal. - (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order - (a) a decision or order passed by the Commissioner of Customs as an adjudicating authority; (b) an order passed by the Commissioner (Ap....