2023 (5) TMI 617 - AT - Customs

Absolute Confiscation - Gold - enhancement of penalty - appeal filed by the appellant rejected stating that appellant did not pay the mandatory pre-deposit - Section 128A(3)(a) of the Customs Act, 1962 - HELD THAT:- The original authority has set aside customs duty demanded and therefore, there was no customs duty demand in the original order if the goods were not redeemed. The goods were not redeemed. Accordingly, there was no need for any pre-deposit by the appellant for filing appeal before the Commissioner (Appeals). Therefore, to that extent finding of learned Commissioner (Appeals) in the impugned order is erroneous.

The original authority did not impose any penalty whereas learned Commissioner (Appeals) has enhanced penalty to Rs.8,40,467/- and such enhancement of penalty was done without following the procedure laid down in first proviso of sub-section (3) of Section 128 of the Customs Act, 1962 which requires learned Commissioner (Appeals) to put the appellant before him on notice and give him a reasonable opportunity of showing cause against proposed order of enhancing penalty.

The impugned order is not sustainable - the matter is remanded to Commissioner (Appeals) for deciding afresh both the appeals filed by the appellant and Revenue by following the proper procedure - appeal is allowed by way of remand.