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2016 (5) TMI 833 - AT - CustomsWhether the Commissioner (Appeals) was to decide only personal penalty or the issue of confiscation, the penalty and redemption fine related thereto - Held that:- the Hon;ble Member has mentioned that he is unable to go into merit of the case and the matter was remanded to the Commissioner (Appeals) to reconsider the issue and pass a fresh order on merit. It was observed that the appeal before the Commissioner (Appeals) as well as before this Tribunal was undisputedly, not only on the issue of penalty but also the issue of confiscation and redemption fine was challenged. I also tried to find out in the proceeding that at any stage where the appellant conceded and gave up the issue of confiscation of goods and redemption fine, but I found that appellant has not conceded on the issue of confiscation and penalty, therefore while remanding the matter by this Tribunal to the Commissioner (Appeals), all the issues were kept open to reconsider by the Commissioner (Appeals). Commissioner (Appeals) decided the issue of personal penalty in isolation without deciding the confiscation and redemption fine on merit. Therefore, the impugned order deserves to be set aside and matter to be remanded to the Commissioner (Appeals) to decide all the issues involved in the appeal filed by the appellant. As regard submission of the appellant that since goods have been sold by the department and the same is not available for redemption, the redemption fine penalty will not sustain and the appellant is entitle for refund the value of the goods in terms of the Hon'ble Supreme Court and Karnataka High Court judgments. It is found that since the Commissioner (Appeals) has yet to decide the merit of entire case, it will be pre-mature to pass any order on this aspect. However, the Ld. Commissioner (Appeals) while deciding the case on merit may consider this issue. Appeal allowed by way of remand
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