TMI Blog2010 (3) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... uncut, polished and manufactured diamonds. The Petitioners, in due course of their business, imported various rough and uncut diamonds from Sri Sentik General Trading FZE, Dubai, UAE. The said diamonds were received under the various invoices during the period from April to May, 2003. On presentation of the necessary bills of entry and other documents, the said diamonds were cleared for home consumption. 6. The Customs Department issued a show-cause notice dated 29-12-2003 to the Petitioners under Section 124 of the Customs Act, 1962 inter alia; calling upon the Petitioners to show cause why action should not be initiated against them for confiscation of the said diamonds as well as levying penalty. 7. The Petitioners replied to the show cause notice. The Commissioner of Customs, Mumbai after adjudication passed an order-in-original dated 28-2-2007 imposing penalty under Section 112(a) of the Customs Act, 1962. Operative part of the said order dated 28-2-2007 reads thus :- "4.1 I order confiscation of Diamonds as detailed at Sr. No. IV to XVI of Annexure E to the Panchanama collectively weighing 561150.17 carats with total invoice value of US $ 7237297.70 equivalent to Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this fact in mind while imposing the penalty. 4.7 I impose penalty of Rs. 1,00,00,000/- (Rupees one crore only) on Shri Hukmichand Jain under the provisions of Section 112(a) of the Customs Act, 1962. 4.8 I impose penalty of Rs. 5,00,000/- (Rupees five lakhs only) on Shri Mohanlal Jain under the provisions of Section 112(a) of the Customs Act, 1962. 4.9 I impose penalty of Rs. 2,00,000/- (Rupees two lakhs only) on Shri Anil Damodar Gharat under the provisions of Section 112(a) of the Customs Act, 1962. 4.10 I impose penalty of Rs. 5,00,000/- (Rupees five lakhs only) each on Sri Vrajendra Thakker and Sri Yogesh Sancheti of M/s Sancheti Jewels under the provisions of Section 112(a) of the Customs Act, 1962. This order is issued without any prejudice to any other action that may be taken under this Act or under any other Act which is in force." 8. Being aggrieved by the aforesaid order dated 28-2-2007, the Petitioners preferred an appeal before the Customs, Excise Service Tax Appellate Tribunal (WZB), Mumbai. In the said appeal, the Petitioners preferred an application praying for stay of the recovery of penalty and claimed waiver of pre-deposit. The Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Customs. No further adverse order can be passed against the Petitioners. He, therefore, submits that there is no reason to detain the Petitioners' bills of entry and other documents. He further submits that all these documents are urgently required by the Petitioners to fulfil the payment obligations in respect of rough and uncut diamonds imported and cleared by them. 11. Per contra, Mr. Kantharia, learned counsel appearing on behalf of the Respondents/Revenue vehemently opposed the prayer made in the present writ petition. In his submission this petition is totally misconceived and does not disclose any cause of action as such the petition cannot be entertained by this Court. He further submits that the Petitioners approached this Court after lapse of six years from the date of letter dated 5-2-2004 addressed to the Petitioner No. 2 by the Joint Commissioner of Customs categorically clarifying that bills of entry (exchange control copies) could not be returned to them at this stage. He further submits that the present petition is liable to be dismissed for non-joinder of necessary party. According to him, in the facts and circumstances of the case and findings recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, its powers and functions are limited by the terms of that statute. 15. Similarly, in the case of Puranmal Radhakishan Company v. CIT - (1957) 31 ITR 294 (Bom), it was held that in an appeal by an Assessee to the Appellate Tribunal, it is not open to the Tribunal to raise any ground which will work adversely to the Appellant and pass an order which makes his position worse than what it was under the order appealed against, if the Department has not appealed from such order. The word "thereon" in the expression "may pass such order thereon as it thinks fit" means on the grounds raised in the appeal, and the words of the section are not wide enough to include a power to enhance an assessment without an appeal by the Revenue. 16. If one turns to the provisions of Section 129 of the Customs Act, 1962, the Tribunal has no jurisdiction to pass an order, so as to permit a ground to be raised by the Respondent which, if allowed, would made the position of the Appellant worse than what it was before. An appellant cannot be worse off by being in appeal before the Tribunal. Thus, looking to the appellate jurisdiction of the Tribunal, the submissions made by Mr. Kantharia appearing for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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