TMI Blog2010 (1) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... back for denovo decision - 26 of 2006 - - - Dated:- 27-1-2010 - V.C. Daga and K.K. Tated, JJ. Shri P.S. Jately, for the Appellant. S/Shri V. Sridharan with Prakash Shah i/b PDS Legal, for the Respondent. [Judgment per : V.C. Daga, J.]. - This appeal at the instance of the Revenue is directed against the order dated 3rd August, 2005 passed by the Customs, Excise Service Tax Appellate Tribunal, West Zonal Bench, Mumbai ("CESTAT" for short) holding that the second-hand reconditioned Wartsila Vasa Basic Engine would qualify as a "capital goods" for the purpose of para 9.12 of Foreign Trade Policy 2004-2009 and can be imported without a licence as per para 2.17 of Foreign Trade Policy 2004-2009 though it becomes operational on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch not capital goods. The importer-respondent was asked to produce import licence as per para 2.17 of the Foreign Trade Policy 2004-2009 and para 2.33 of the Hand Book Procedure Vol. I. The importer-respondent did not possess any valid licence, as such, could not produce the same. The Revenue, finding violation of provisions of para 2.17 of the EXIM Policy held that the goods were liable for confiscation under Section 111(d) of the said Act with penal action under Section 112(a) of the said Act as such issued a show cause notice seeking explanation of respondent/importer. 5. The respondent filed their reply dated 11th March, 2005 and 8th April, 2005. After affording personal hearing to the petitioner, the Commissioner of Customs (Import) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is order. Submissions : 8. Mr. Jately, learned Counsel appearing for the Revenue strongly criticized the order of the Tribunal, contending that none of the contentions raised by the Revenue were discussed in detail by the Tribunal and that by a cryptic and unreasoned order, their appeal was rejected. 9. Mr. Jately also made submissions on merits of the matter reiterating the grounds raised in the memo of appeal. In support of his contention that the impugned order is cryptic and unreasoned, he took us through the one-page impugned order and tried to demonstrate absence of reasons in support of the view taken by the Tribunal. He further went on to submit that the impugned decision of the Tribunal runs counter to the judgment of the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the order refers to the findings given by the adjudicating Commissioner, whereas third para takes notice of the definition of word "goods" and finally in fourth para conclusive finding without there being any threadbare discussion is recorded. Such order can hardly be said to be a reasoned order with application of mind. 13. Mr. Jately brought to our notice the earlier judgment of the Tribunal in the case of Khurana Exports (Supra), wherein the view was taken by the Tribunal that the second hand diesel was not capital goods. When the said judgment was cited before the Tribunal, it was expected on the part of the Tribunal either to consider the said judgment or distinguish it or to refer it to the Larger Bench if contrary view was warran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which carry convictions within the Courts, profession and public. Otherwise, the lawyers would be in a predicament and would not know-how to advise their clients. Subordinate courts would find themselves in an embarrassing position to choose between the conflicting opinions. The general public would be in dilemma to obey or not to obey such law and it, ultimately, falls into disrepute. (See Sundarjas Kanyalal Bhathija v. Collector, Thane, AIR 1990 SC 261). 15. For the reasons stated in the said judgment, impugned order is also liable to be quashed and set aside. 16. The Tribunal is expected to bare in mind that the judgments of the Tribunal are subject to scrutiny by High Courts, especially, in exercise of appellate jurisdiction and/o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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