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Harish G. Bulchandani Versus Commissioner of Central Excise, Thane-I

2016 (5) TMI 833 - CESTAT MUMBAI

Whether the Commissioner (Appeals) was to decide only personal penalty or the issue of confiscation, the penalty and redemption fine related thereto - Held that:- the Hon;ble Member has mentioned that he is unable to go into merit of the case and the matter was remanded to the Commissioner (Appeals) to reconsider the issue and pass a fresh order on merit. It was observed that the appeal before the Commissioner (Appeals) as well as before this Tribunal was undisputedly, not only on the issue of p .....

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als) decided the issue of personal penalty in isolation without deciding the confiscation and redemption fine on merit. - Therefore, the impugned order deserves to be set aside and matter to be remanded to the Commissioner (Appeals) to decide all the issues involved in the appeal filed by the appellant. As regard submission of the appellant that since goods have been sold by the department and the same is not available for redemption, the redemption fine penalty will not sustain and the appe .....

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CIAL) For the Petitioner : Shri Sanjay Agarwal, Advocate For the Respondent : Shri D.K. Sinha, A. C. (A.R.) ORDER PER : RAMESH NAIR The appeal is directed against Order-in-Appeal No. BR(88)Th-I/2012 dated 31/07/2012 passed by the Commissioner of Central Excise (Appeals), Mumbai Zone-I, whereby the Ld. Commissioner (Appeals) rejected the appeal filed by the appellant. 2. The fact of the case is that the preventive staff of Thane-I Commissionerate detained 50721 yards of fabrics totally valued at .....

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seized goods and got it tested and chemically examined. As per the report, the goods seized and imported under said Bills of Entry are not matching. Show cause notice was issued proposing the confiscation of the seized goods and also penalty on Shri Harish G. Bulchandani under Section 112(a) and 112(b). In the adjudication order, the goods were confiscated under provisions of Section 111(d) and 111(j) of Customs Act, 1962 and a penalty of Rs. One lakh was imposed. 3. Aggrieved by the Order-in-Or .....

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eal itself wherein the matter was remanded to the Commissioner (Appeals) to disposal of appeal on merit. 4. The Ld. Commissioner (Appeals) as per the remand order of the Tribunal viewed that there is a direction of the Tribunal that the only penalty issue to be decided. Accordingly the Ld. Commissioner vide impugned order decided the case only in respect of personal penalty imposed on the present appellant. However no order was passed on redemption fine. Aggrieved by the Commissioner (Appeals)s .....

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Tribunal also was challenging all the issues and not only penalty. He also submits that the appellant has not conceded at any stage to give up the issues of confiscation. The Ld. Commissioner only on going with the Tribunals order which mentioned issue involved in this case on personal penalty taken a view, that in remand proceeding, the only issue decided by him, is of penalty. He submits that this mention in the order was in context with the stay application, only for the reason that the ap .....

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t on merit of the case appellant had submitted the test report of textile committee in respect of fabrics imported by M/s. Warren Trading Pvt. Ltd. and M/s. Suri Exports Pvt. Ltd., however the same was not considered by the lower authority and the case was decided only on the basis of mis-match of description and mark on the packages of goods. He submits that the appellant during the investigation, properly explained regarding the mis-match of packaging and mark on the packages. However, the tes .....

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on of India - 2002(140) ELT 3 (SC) (ii) Commr. of Customs, Bangalore vs. MD. Yaseen -2010(255) ELT 50 (Kar.) 6. On the other hand, Shri D.K. Sinha, Ld. Assistant Commissioner (AR) appearing on behalf of the Revenue, reiterates the findings of the impugned order. He submits that as per the earlier Tribunal s remand order, the Tribunal observed that the only issue involved in personal penalty on the appellant. Therefore, the Ld. Commissioner (Appeals) has decided the matter only in respect of pers .....

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hereto. The earlier Tribunal s remand order while disposing of the stay application disposed of appeal itself by way of remand. The relevant portion on the order is reproduced below: 3. As regards the stay application, I find that the issue involved in this case is challenged towards the penalty imposed upon the applicant by the adjudicating authority. As the issue involved is in narrow compass, the stay application is allowed and the appeal itself is taken up for disposal. 4. It is seen from th .....

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reme Court in the case of Collector, Land Acquisition, Anantnag vs. Mrs. Katiji reported in 1987 (2) SCC 107. Since the issue involved in this case is of personal penalty imposed on the appellant, the Commissioner (Appeals) could have condoned the delay and heard the appeal on merits. Since the appeal has been dismissed only on the time bar, I am unable to go into the merit of the case. As such the delay in filing the appeal before the Commissioner (Appeals) is condoned and the matter is remande .....

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-deposit of penalty. For that reason it was mentioned the issue involved in this case is challenged towards the penalty imposed upon the applicant by the adjudicating authority. However in the para, as regard to the appeal, the Honble Member has mentioned that he is unable to go into merit of the case and the matter was remanded to the Commissioner (Appeals) to reconsider the issue and pass a fresh order on merit. I also observed that the appeal before the Commissioner (Appeals) as well as befo .....

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