TMI Blog2018 (10) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (Appeals) under Section 128A of the Act. The appeal before the Tribunal in the instant case was that of the appellant. Subsection (2) of Section 129A gives power to the Department to prefer an appeal. The said provision states that if the Committee of Commissioners of Customs is of the opinion that the order passed by the Commissioner (Appeals) is not legal a proper, they can direct an appeal to be filed. Admittedly, in the instance case, the Chief Commissioner has not issued any direction nor formed an opinion that an appeal has to be filed against that portion of the order passed by the Commissioner (Appeals), allowing redemption of the seized gold - In the instance case, the Department neither exercised their power of filing an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avani Subbaroyan JJ. For the Appellant : Mr.A.Thiyagarajan,Senior Counsel for M/s.S.Ramesh Kumar For the Respondent : Mrs.R.Hemalatha Senior Standing Counsel for R1 JUDGMENT T. S. SIVAGNANAM, J. This appeal by the assesee is directed against the final order passed by the Customs, Exercise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai, (in short, the Tribunal ) dated 29.04.2016 in Final Order No.40678/2016. 2. Mr.A.Thiyagarajan, learned Senior Counsel appearing 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 concessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mposed penalty of ₹ 10,000/- on the appellant. Aggrieved by the same, the appellant preferred an appeal to the Commissioner of Customs (Appeals) [in short, the Commissioner (Appeals) ]. The first appellate authority vide Order-in-Appeal dated 29.04.2009 modified the order passed by the original authority by allowing redemption of gold, subject to payment of fine of ₹ 15,00,000/-, by exercising the power under Section 125 of the Act. Aggrieved by the amount of redemption of fine imposed, the appellant filed 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 correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. 8. One more opportunity available to the person, who has not filed an appeal and in cases where the aggrieved party is on appeal, is Sub-section (4) of Section 129A, which provides for a remedy. In terms of the said provision, on receipt of notice that an appeal has been preferred under Section 129A, the party, against whom the appeal has been preferred, may notwithstanding that he may not have preferred an appeal against such order or any part thereof, file within 45 days of the receipt of notice, an Memorandum of cross objection 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t affirming, modifying and annulling the decision or order appealed against. What has to be borne in mind is that the appeal, which was heard by the Tribunal, was an appeal filed by the appellant herein and not an appeal of the Department nor a cross objection of the Department in terms of Sub-section (4) of Section 129A. Therefore, in an appeal filed by the assessee, the Tribunal could have passed an order as it thinks fit, affirming, modifying or annulling the decision or order appealed against and the order appealed against in the instance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a Latin maxim expressing the principle of procedure, according to which, using the remedy at law, should not aggravate the situation of the one who exercises it. 12. As pointed out earlier, the power of the appellate Tribunal is exercisable under Section 129B(1) only against the decision or order appealed against and in doing so, it may pass such orders as it thinks fit affirming, modifying and annulling the decision or order appealed against. Admittedly, the Department did not file an appeal against the order of the Commissioner (Appeals) 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 dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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