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TMI Blog1997 (11) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, in the first instance, contended before us that the goods had already been released in favour of the appellants, in terms of the orders passed by the Additional Commissioner. Therefore, he pointed out that when the goods are not available, the Commissioner (Appeals) in the impugned order would not have enhanced the above redemption fine. It was his contention that in order to enhance the redemption fine, the goods should have been in the possession of the department. He pointed out that once the goods are released and are not available for confiscation under Section 125, the redemption fine cannot be enhanced. 4. We observe that this very same point was heard by us on 10-11-1997 and after hearing both the sides, in Paras 1 and 2 of our Note, we have observed as under :- 1. The ld. Advocate Shri A.K. Jayaraj had raised the legal plea that the ld. Commissioner (Appeals) could not enhance the redemption fine inasmuch as the goods had already been released based on the order of the ld. original authority against which the department had taken-up the matter under Section 128A of the Customs Act before the ld. Commissioner (Appeals). 2. We heard the arguments of both the sides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y been confiscated by the Additional Commissioner, the only question which was to be determined by the Commissioner (Appeals) was whether the redemption fine and the penalty imposed in lieu of confiscation is proper or not and whether it required any reduction. Therefore, the question of confiscability was not a question before the Commissioner (Appeals). The reason is, that the confiscation order had already been passed by the Additional Commissioner and the confiscation of the goods in question is not under challenge by the appellants. The only question to be decided by the Commissioner (Appeals) is, whether the redemption fine fixed by the Additional Commissioner in lieu of confiscation requires any reduction or not. In this connection, we reproduce Section 128A of the Customs Act, which reads as follows : Section 128A. Procedure in appeal. - (1) The Collector (Appeals) shall give an opportunity to the appellant to be heard if he so desires. (2) The Collector (Appeals) may, at the hearing of an appeal, allow the appellant to go into any ground of appeal not specified in the grounds of appeal, if the Collector (Appeals) is satisfied that the omission of that ground from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly conferred on him in view of Section 128A of the Customs Act. This provision is a part of the supervisory power of the Commissioner (Appeals), provided by the legislature, in case of any mis-carriage of justice. Therefore, this argument of the learned Advocate that he has no power to enhance the redemption fine is not sustainable. 9. This is not a case where the goods were not available for confiscation before the original authority. When the original authority passed the impugned order, the goods were available for confiscation and he confiscated the same. In the appeal proceedings, the question of confiscation was not the point to be determined and the point to be determined was, whether the amount fixed as redemption fine required any reduction or not. Therefore, it is not a question of confiscation, which was dealt with by the Commissioner (Appeals) and that being so, he was perfectly within his right to modify the redemption fine, in view of Section 128A of the Customs Act. 10. The learned Advocate stated that under the proviso to Section 128A, a reasonable opportunity should have been given to the appellants with respect to the enhancement of the redemption fine. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearing the impugned goods in lieu of confiscation. From the records, it appears that there was also not much delay in adjudication of these matters and consequently no demurrage charges appear to have been incurred before clearance through customs. Having regard to all these factors, I am of the view that the ends of justice would be met if the redemption fine is fixed at the level of 100% of CIF value, I modify the orders of the lower authority in all these cases and fix 100% redemption fine as indicated in Column 9 of the annexure. 13. A perusal of this para goes to show that the Commissioner (Appeals) relied on the Economic Times to come to the conclusion that even taking the lowest price of the White Cummin Seeds, the price will be at Rs. 40/- per kg. and not Rs. 95/- per kg. It is on the basis of that finding, he fixed the redemption fine at a higher percentage. 14. The learned Advocate, in this regard, contended before us that the appellants had imported Black Cummin Seeds. He pointed out that Black Cummin Seeds are inferior in quality than the White Cummin Seeds. He also pointed out that the price of Black Cummin Seeds in the market is lesser than the White Cummin Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general, is lower than that of White Cummin Seeds, then he should consider the reduction of the redemption fine in the light of the price which he has found during the enquiry and proportionately, the redemption fine should be fixed. The element of penalty will also be dealt accordingly. 19. The appeals are decided in the above terms. ANNEXURE - `A CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL SOUTH REGIONAL BENCH Sl. No. Appellant s Name Appeal No. Quantity (Kgs.) B/E No. Date (1) (2) (3) (4) (5) 1. M/s. Onkar Trading Co., Amritsar. C/703/97 12,375 314 23-12-1994 2. M/s. Arco Enterprises C/704/97 25,575 259 24-11-1994 3. M/s. S.R. Co. C/735/97 5,940 O. No. 32/94 4. M/s. Arco Enterprises C/736/97 20,575 61 6-12-1994 5. M/s. Sunil Traders C/731/97 5,940 321 29-11-1994 6. M/s. Kelumal Mothiram C/732/97 5,940 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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