TMI Blog2011 (3) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Rs. 3,00,000/-, being the enhanced penalty imposed on one Rahamathullah, for the release of the gold chains and to direct the second and the third respondents to release the goods in question for the purpose of re-exporting the same, without imposing any conditions, as per the provisions of the Customs Act, 1962. The respondents have not been in a position to show as to how the petitioners would be liable to pay the enhanced penalty imposed on Rahamathullah. Further, there is no finding that the goods in question belongs to Rahamathullah. It is also noted that the order of the Commissioner of Customs (Appeals), Chennai, dated 5-2-2010, had become final. In such circumstances, the petitioner need not be compelled to avail the appellate remedy, available under the provisions of the Customs Act, 1962. - 2595 of 2011 - - - Dated:- 16-3-2011 - M. Jaichandren, J. REPRESENTED BY : Shri P. Satish Sundar, Counsel, for the Petitioner. Shri K. Ravi Anatha Padmanabhan, Counsel, for the Respondent. [Order]. It has been stated that the petitioner is a Non-resident Indian employed in Singapore. He has been issued with the passport, bearing passport No. E0735182. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal, along with the appeals filed by the other persons, from whom gold jewellery had been seized. The Commissioner of Customs (Appeals), had issued a show cause notice to the petitioner and the others, including the said Rahamathullah, as to why the penalty imposed on them should not be enhanced, in terms of the first proviso to sub-section (3) of Section 128A of the Customs Act, 1962. The other appeals and the show cause notice had been taken up for hearing and a common order, dated 5-2-2010, had been issued setting aside the order of absolute confiscation and had allowed re-export of the gold ornaments, on payment of a redemption fine of Rs. 37,000/-, besides a penalty of Rs. 20,000/-. The penalty of Rs. 5000/-, imposed on the said Rahamathullah, had been enhanced to Rs. 25,000/-, in each case. 5. It has been further stated that the petitioner had paid the fine and penalty and had sought for the re-export of the seized ornaments. The payment of fine and the enhanced portion of the penalty had been done, immediately, after the receipt of the order of the Commissioner of Customs (Appeals), dated 5-2-2010. Under the said order the petitioner has to exercise the option to re-export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion but to resort to Section 142(1)(b) of the Customs Act, 1962. Since, Rahamathullah had played a vital role in the matter and as the penalty imposed and enhanced on him has to be recovered from 15 passengers, including the petitioner, before the release of the goods, Section 142(1)(b) of the Customs Act, 1962, had been invoked. As such, the impugned order cannot be said to be arbitrary, illegal or void. Therefore, the re-export of the gold jewellery can be ordered only on compliance with the order, asking the petitioner and the others to pay the enhanced fine, including the amount payable by Rahamathullah. 8. The learned counsel appearing on behalf of the petitioner had stated that the impugned communication, dated 24-12-2010, is contrary to the provisions of the Customs Act and the Rules framed thereunder. The penalty imposed and enhanced for Rahamathullah cannot be recovered, either from the petitioner, or from any other person. The penalty imposed on Rahamathullah is in the nature of a personal penalty. It is only a penalty in personam and not a penalty in rem, which is imposed against the offending goods. It had also been submitted that, even though the petitioner and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 112(a) of the Customs Act. The personal penalty levied against Sri Yahoo under Section 112(a) of the Customs Act is for helping the petitioner to commit the offence i.e. for abetment. The penalty so levied being personal cannot be recovered from the importer or any other person. Therefore, the petitioner is not personally liable for the penalty levied on Sri Yahoo and the amount also cannot be recovered from the petitioner. The next question to be considered is whether the vehicle imported by the petitioner could be detained by the Customs until personal penalty levied on Sri Yahoo is paid or recovered. This is permissible only if the statute creates charge for the personal penalty on the imported vehicle which is not there in the statute. Release of vehicle after confiscation is covered by Section 125 of the Act which gives an option to the importer to pay the fine levied in lieu of confiscation and the import duty and other charges. Petitioner has admittedly remitted the import duty, redemption fine, personal penalty and other charges for releasing the vehicle pursuant to order issued under Section 125 of the Act. The Supreme Court has considered the nature of penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to entitlement of relief sought and founding the claim on the basis of a non-existent fact, amounts to practising fraud on Court. 11.2 In Commissioner of Customs (Exports), Chennai v. Ishwar Impex [2010 (250) E.L.T. 33 (Madras)], it had been held as follows : 7. Having heard the counsel for respective parties we find that the order is liable to be set aside substantially on two grounds, in the first place, we are of the view that the Tribunal ought not to have passed the impugned order in the absence of M/s. Sandip Exports Limited. Therefore, for non-impleading of the proper party, the order impugned is liable to be set aside. We say so because when we peruse the order-in-original we find this question as to the entitlement of the original importer to the goods imported has been considered by the original authority who has found that there was no relinquishment of the goods by the original buyer of the title to the goods, that it can never relinquish the title to the said goods inasmuch as the goods have already been seized by the Customs Authority for infringement of the conditions of advance licence, that in law, the supplier had not recalled the documents in respect of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue of maintainability of the writ petition, had held that any order or decision of the Appellate Tribunal means all decisions or orders of the Appellate Tribunal and all such decisions are, subject to limitation. The Supreme Court had further held that the High Court had fell into a manifest error by not appreciating the aspect of the matter and it ought not to have entertained the writ petition, even if it had territorial jurisdiction. 11.4 In Raj Kumar Shivhare v. Directorate of Enforcement [2010 (4) SCC 772 = 2010 (253) E.L.T. 3 (S.C.)] it had been held as follows : The word any in this context would mean all . We are of this opinion in view of the fact that this Section confers a right of appeal on any person aggrieved. A right of appeal, it is well settled, is a creature of Statute. It is never an inherent right, like that of filing a suit. A right of filing a suit, unless it is barred by Statute, as it is barred here under Section 34 of FEMA, is an inherent right (See Section 9 of the Civil Procedure Code) but a right of appeal is always conferred by Statute. While conferring such right Statute may impose restrictions, like limitation or pre-deposit of penalty or i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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