2011 (1) TMI 1020 - AT - Customs

Stay - whether it was open to the Commissioner (Appeals) to order for refund of fine and penalty to the importer? - Held that - The only answer to this question would be in the negative. As rightly pointed out by the SDR, the Assistant Commissioner s order relating to confiscation, redemption fine and penalty was not challenged by the importer and hence the same was not liable to be interfered with by the Commissioner (Appeals) in an appeal filed by the Revenue - set aside the impugned order and allow the appeal.

Summary

Issues:
1. Stay application by the Revenue to stay the operation of the Appellate Commissioner's order.
2. Import of two live dogs without Import-Export Code (IEC) and Special Import Licence.
3. Valuation of the dogs for assessment.
4. Confiscation of the dogs under Section 111 (d) of the Customs Act.
5. Imposition of fine and penalty by the Assistant Commissioner.
6. Jurisdiction of the Commissioner (Appeals) to order refund of fine and penalty.

Analysis:
1. The Revenue filed an application seeking a stay on the Appellate Commissioner's order. Despite no opposition, the Tribunal remanded the case to the lower appellate authority after finding sufficient reason. The appeal was then taken up for final disposal after staying the operation of the Appellate Commissioner's order to a limited extent as indicated in the stay application.

2. The respondent imported two live dogs without possessing the required Import-Export Code (IEC) and Special Import Licence as per the Foreign Trade Policy 2004-09. The Assistant Commissioner valued the dogs and imposed a fine and penalty, with a decision on confiscation under Section 111 (d) of the Customs Act. The Commissioner (Appeals) upheld the valuation but ordered a refund of the fine and penalty paid by the importer. The Revenue's grievance was that the Commissioner (Appeals) exceeded his jurisdiction in ordering the refund.

3. The Assistant Commissioner's decision on confiscation, redemption fine, and penalty was not challenged by the importer, making it final. The Commissioner (Appeals) had no authority to revisit this settled issue. The Tribunal agreed with the Revenue's argument, stating that the Commissioner (Appeals) had no grounds to order a refund of the fine and penalty. As the Assistant Commissioner's order was not challenged by the importer, the Commissioner (Appeals) overstepped in granting the refund.

4. The Tribunal, therefore, set aside the impugned order and allowed the appeal, emphasizing that the Commissioner (Appeals) had no jurisdiction to interfere with the Assistant Commissioner's decision on confiscation, fine, and penalty. The only remaining question was the refund, which was deemed inappropriate given the lack of challenge to the original order. The decision was pronounced in court, concluding the matter.