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TMI Blog2018 (10) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... ppearing for the appellant, submitted that the Court may consider the substantial questions of law No.(i) and (iii), though, the appeals have been admitted on 3 substantial questions of law vide order dated 02.12.2016. Thus, recording the concession given by the learned Senior Counsel for the appellant, this appeal is admitted on the following two substantial questions of law : "(i) Whether on the facts and in the circumstances of the case, the Tribunal was right in suo motu resorting the order of the Additional Commissioner of Customs, Adjudicating Authority, when there was no appeal filed by the Department under Section 129A or cross appeal under Section 129A(4) of Customs Act is correct in law ? and (iii) Whether on the facts and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal before the Tribunal. The Tribunal vide the impugned order, while dismissing the appeal filed by the appellant, restored the Order-in-Original dated 11.01.1994, wherein, absolute confiscation was ordered. The correctness of this order is put to challenge in this appeal. 5. Heard Mr.A.Thiyagarajan learned Senior Counsel for Mr.S.Ramesh Kumar, learned counsel appearing for the appellant and Mrs.R.Hemalatha, learned Senior Standing Counsel for the respondent. 6. The issue, which falls for consideration, is as to whether the appellant can be put in worse position in an appeal filed by him, when admittedly, the Department did not file an appeal against the order of the Commissioner (Appeals) exercising discretion under Section 125 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection and such Memorandum shall be disposed off by the Appellate Tribunal as if it were an appeal preferred within the time specified in Sub Section (3) of Section 129A, which is to be filed within a period of three months from the date on which the order sought to be appealed is communicated. Thus, in the instance case, the Department neither exercised their power of filing an appeal under Sub-section (2), nor filed a cross objection on receipt of notice in the appeal filed by the appellant herein before the Tribunal. In such circumstances, could the Tribunal have exercised its powers and while dismissing the appellant's appeal, restore the order passed by the original authority, which stood modified by the order passed by the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstance case is the order passed by the Commissioner (Appeals) dated 29.04.2009 and not the Order-in-Original dated 11.01.1994. 10. More or less a similar question came up for consideration in the case of Servo Packaging Ltd. V. CESTAT, 2016 (340) E.L.T. 6 (MAD) and one of the questions which was framed for consideration was whether the Appellate Tribunal and the Appellate Authority have jurisdiction to interfere with the part of the order of the Adjudicating Authority, which does not form the subject matter of appeal before the First Appellant Authority and whether the Tribunal is justified in enlarging the remand order of the First Appellate Authority, wherein, the First Appellate Authority has no power to remand the matter, since the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) permitting the redemption of the seized gold. In such circumstances, the Revenue should not be said to be aggrieved by such a direction granting redemption and the Tribunal clearly erred in dismissing the appellant's appeal and restoring the order passed by the original authority. 13. For the above reasons, the appeal is allowed and the order passed by the Tribunal is set aside and the matter is remanded to the Tribunal for a fresh decision on the appellant's appeal to test as to whether the Commissioner (Appeals) was right in fixing the market value of the gold on the date when he passed the order, when according to the appellant, the market rate prevailing on the date of seizure should be taken into consideration. The remand is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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