2014 (7) TMI 454 - HC - Customs

Appeal against the order of CESTAT where on some points of difference of opinion matter referred to larger bench and on some issues, tribunal has given their decision by consensus - Held that - Appeal filed in the present case is premature at this stage and does not raise any substantial question of law to be considered by this Court. Following the judgement of this Court in the case of Zenith Computers Ltd. (2014 (5) TMI 182 - BOMBAY HIGH COURT) we dismiss this Appeal. However, it is clarified that once the third Member passes his order, either agreeing with the Member (Technical) or Member (Judicial), both the parties shall be at liberty to challenge the view of the majority including on the issues on which the original two Members were in agreement set out earlier in this order. - Decided against the revenue.

Summary

Issues:
- Appeal challenging CESTAT order
- Seizure of foreign currency
- Confiscation and penalties imposed
- Difference of opinion among CESTAT members
- Premature appeal before High Court

Analysis:
1. Appeal challenging CESTAT order:
The Commissioner of Customs filed an appeal challenging the order passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) where the appeals filed by the respondents were allowed. The CESTAT members had a difference of opinion on certain aspects, leading to the present appeal before the High Court.

2. Seizure of foreign currency:
The case involved the seizure of USD 70,000 from one of the respondents departing for Dubai from CSI Airport. Further investigations revealed that other respondents were involved in carrying out a total of USD 3,50,000 illegally in previous visits abroad. The Commissioner of Customs issued a show cause notice and imposed confiscation and penalties on the respondents.

3. Confiscation and penalties imposed:
The Commissioner of Customs ordered the confiscation of USD 70,000 and imposed penalties on the respondents. Additionally, penalties were imposed for the previous visits, and foreign currency seized from one respondent was adjusted against penalties imposed on others. The CESTAT set aside the order of confiscation and penalties imposed by the Commissioner on certain respondents.

4. Difference of opinion among CESTAT members:
The CESTAT members had a difference of opinion on certain issues, leading to the matter being referred to a third member for a decision. Despite the disagreement, the members were in agreement on specific points, including setting aside the order of confiscation, dropping penalties on one respondent, and holding the adjustment of foreign currency seized as not sustainable.

5. Premature appeal before High Court:
The High Court found that the appeal filed by the Commissioner of Customs was premature as the matter was still pending before the CESTAT for a decision by the third member. Following a previous judgment, the High Court dismissed the appeal, clarifying that once the third member passes an order, both parties can challenge the decision. The High Court expressed no opinion on the issues where the original two CESTAT members were in agreement.

In conclusion, the High Court dismissed the appeal as premature, allowing both parties to challenge the decision once the third member of CESTAT provides a majority view. The High Court clarified that it did not express any opinion on the issues where the original CESTAT members were in agreement.