TMI Blog2004 (7) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... peal before the 3rd respondent namely the Commissioner of Customs (Appeals). The 3rd respondent after conducting an enquiry has reduced the redemption fine to 75% and imposed a penalty of Rs. 1,50,000/-. The redemption fine worked out to Rs. 4,94,730/- and Rs. 2,82,882/- in respect of the bills of entry. As against the said order of the 3rd respondent, the department filed an appeal before the second respondent Tribunal namely The Customs Excise Gold (Control) Appellate Tribunal, South Zone, Madras. The Tribunal by its order dated 28-11-97 has fixed the redemption fine at the rate of 155% and confirmed the penalty imposed by the 3rd respondent. 2.Learned counsel for the petitioner contended that the Adjudicating Authority namely the 4th r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aghavan, Additional Central Government counsel appearing for the respondents contended that there is no infirmity in the order of the Appellate Authority inasmuch as the said Authority namely, the Tribunal has chosen to find out the correct value by ordering a separate enquiry. Learned Additional Central Government Standing Counsel further submits that since the original authority has failed to conduct the market enquiry, there is nothing improper on the part of the Tribunal to conduct such an enquiry. He further submitted that the order of the Tribunal is liable to be upheld. 4.I have considered the rival submissions of the learned counsel of the respective parties. Since the 2nd respondent Tribunal has reversed the order of the 3rd resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of a similar consumer product i.e.. Cassia vide order No. 2478/96 dated 18-12-96 in Appeal No. 1199/96 and C/697/96 of M/s. General Traders and the demurrage charges involved, I consider that ends of justice will be met if the redemption fine is reduced to 75% of CIF value in each case. I order accordingly. In the facts and circumstances of these cases, I reduce the penalty of Rs. 50,000/- (Rupees fifty thousand only) in the case of appellant No. 1 and Rs. 1,50,000/- (Rupees One lakh fifty thousand only) in the case of appellant No. 2 for both the appeals i.e. (A.No. C 24/2/97 C 24/3/97)." 5.Inasmuch as the 3rd respondent has dealt with the matter with reference to the available records and reversed the finding rendered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the samples taken in the said consignment. In the instant case, it is not disputed that the bills of entry is related to August 1996 which is totally a different consignment for a different period. The approach of the 2nd respondent Tribunal in considering the value arrived at in respect of a different consignment, a sample of which was drawn which was also of the subsequent year, is not legally sustainable. 6.Learned Additional Central Standing Counsel has fairly submitted that the procedure which was adopted by the Tribunal is not in terms of any of the provisions of Customs Act. Even though learned counsel contended that such an enquiry is permissible in law of course it has to be conducted after giving adequate opportunity to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents/sole proprietor challenging confiscation and penalty. In the facts and circumstances of the case, we are satisfied that the course adopted by the Tribunal of permitting respondents to adduce evidence before it for the first time and then in proceeding to decide the case on merits on that basis was not correct. If the Tribunal was of the view that a fresh opportunity was required to be given to the respondents to adduce evidence and show cause in response to the notice given to the respondents, the appropriate course for adoption was to remit the matter to the Commissioner of Customs, Calcutta. For this reason alone, the Tribunal's order must be set aside." 8.Further, the Tribunal has gone to the extent of passing remarks as against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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