9911796707
TMI Blog2010 (2) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... im of the assessee in respect of nine bales of mulberry raw silk of foreign origin and three bales of dupion silk yarn, which the assessee had admitted to be part of imports made by it from China is a valid import, supported by material indicating a valid import and therefore, the importer should not be subjected to any penalty nor to confiscation order. 3. While the version of the assessee that nine bales of mulberry raw silk of foreign origin and three bales of dupion silk yarn, which had been seized by the customs authority on 29-12-1999 at the shop-cum-godown of the respondent-assessee on certain definite information that they had stored illicit goods and further action in the form of a show cause notice dated 27-6-2000 (copy produced at Annexure-B) on the premise it was illicitly imported goods of foreign origin is wrong and incorrect as commensurate duty had been paid and the goods cleared at customs port and had also asserted this position, version of the Customs Department on the other hand is that the supporting documents were not shown to the search officer at the time of search and seizure of the goods in question. 4. In response to the show cause notice date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l acquisition of such yarn would not prove the department" case for confiscation and penalty. The same as imposed are required to be set aside. (b) The mere fact of sale and purchase without bills only raise a question about legal nature of acquisition. That would not by itself be enough to establish smuggled non-duty paid nature of the goods as held in Jatin Mehta v. CC, Mumbai [2000 (120) E.L.T. 108 (Tri)]. We follow the same to determine that there is no case made out for confiscation and or penalty or duty." 8. The effect of the order of the Appellate Tribunal is that the assessee would become not only entitled to seek restoration of the seized goods which had been confiscated by the adjudicating officer and affirmed by the Appellate Tribunal but also is not liable to pay any duty or penalty. 9. It is aggrieved by this order passed by the Appellate Tribunal, rather strangely, the Commissioner of Customs has approached this Court by filing the present writ petition though he could have lightly approached this Court invoking the provisions of Section 130 of Customs Act. It is because of this reason Sri Laxminarayan, learned counsel for the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the conscience of the court is pointed out, this court will not sit on the platform of technicalities not to entertain a writ petition but should examine the position within the parameters of such a petition under Article 227; that while the Commissioner of Customs no doubt could have chosen to prefer an appeal, but at the relevant point of time the Commissioner was more inspired by the Budget Speech in the Parliament wherein the Finance Minister had indicated that a petition under Article 226 of the Constitution of India is a possible remedy to the department in a situation where it has come across such orders, being passed by the statutory Tribunal and therefore urges that the petition should be ordered on merits. 13. Be that as it may, the information the Commissioner has with him or he being inspired by the Budget Speech of the Finance Minister, are not very germane in deciding whether the writ petition is tenable or otherwise. 14. In so far as the exercise of jurisdiction tinder Articles 226 and 227 of the Constitution of India is concerned, we have no doubt in our minds that it is an extraordinary/discretionary jurisdiction and at the discretion of the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the order of the Tribunal is one without any rhyme or reason, not sustainable in law; that the Tribunal has not assigned any reason at all to reverse or set aside the order passed by the first two authorities in so far as it related to the question of confiscation and levy of penalty and redemption fine and therefore on the face of it the order being a non-speaking order is liable to be quashed and left at that and the order passed by the first appellate authority to remain in force. 18. On the other hand, Sri Lakshminarayan, learned counsel for the respondent has submitted that there was sufficient material before the authorities to conclude that the goods in question had been licitiy imported; that the respondent-assessee had placed commensurate material to support this claim; that there is a bill of entry to support the claim of licit importation in the reply to the show cause notice; that the assessee had arranged its affairs based on such premise; that the actual imported goods which had been consumed while had been shown in the books of accounts and the remaining extent of bales of silk which remained unsold with the assessee during the year, also had been indicated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consequence in respect of the goods not properly imported, inevitably visits such goods. 22. In so far as the order of absolute confiscation is concerned, it having been demonstrated and not in dispute that it was not prohibited goods, the confiscation could only be subject to allowing redemption on payment of fine and that has been done by the first appellate authority. There was absolutely no occasion for the Tribunal to have reversed this finding and the right conclusion of the first appellate authority. 23. The first appellate authority having taken a lenient view to reduce personal penalty on the assessee from Rs. 2 lakhs to Rs. 1 lakh and with the Tribunal not assigning any reasons as to under what circumstances it has modified the order, it is an order which suffers from the vice of non-speaking order, being one without assigning any reasons and it is not sustainable, in the examination of any jurisdiction by this court i.e., even the supervisory jurisdiction under Article 227 of the Constitution of India. 24. Sri Lakshminarayan, learned counsel for the respondent-assessee has made a passionate plea that the matter at least should be remanded to the appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
