9911796707
TMI Blog2000 (1) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... of agricultural origin and could be imported only under specific import licence. No specific import licence in respect of the goods having been produced by the importer, the Department treated the import as unauthorized and the goods as liable to confiscation under the Customs Act. They also treated the importer as liable to penal action under the Customs Act. The matter was eventually adjudicated by the Additional Collector of Customs as per order dated 3-12-1993, whereby the goods were confiscated and the appellant was allowed to redeem the same on payment of Rs. 18,000.00 as redemption fine. The Additional Collector, further, imposed a personal penalty of Rs. 5000.00 on the party. Against this order of adjudication, the Department prefer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority has no jurisdiction or power to leave the question of enhancement of fine and penalty (as prayed for by the Department in their appeal before that authority) in the hands of the Department under Section 128A of the Customs Act. The further submission of the ld. Advocate is that it was incumbent upon the Commissioner (Appeals) to issue a show-cause notice to the party under the first proviso to sub-section (3) of Section 128A of the Customs Act before passing final order in the appeal of the Department wherein the only prayer was for enhancement of redemption fine and penalty. The lower appellate authority has passed the impugned order without doing so. The ld. Advocate has, therefore, prayed for allowing the present appeal by sett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment used (by the lower appellate authority) in this context as the adjudicating authority while the ld. Advocate has maintained that the word Department means nothing but the Department. Whether it be the Department or the adjudicating authority, one thing is clear that the lower appellate authority has abdicated his power of enhancing penalty and fine in favour of somebody else. Such power is a power which the lower appellate authority did have under Section 128A of the Act. Even if the Commissioner (Appeals) had wanted to enhance the penalty and fine himself, he could have done so only after issuance of a show-cause notice as required by the first proviso ibid. This, he did not do. While agreeing with the points raised by the Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lower appellate authority for de novo consideration and decision. 8. Having regard to the fact that the only question involved in the present case is regarding the extent of penalty and fine imposable on the appellant and that the order of the Additional Collector imposing a fine of Rs. 18,000.00 and a penalty of Rs. 5000.00 on the party appears, in my view, to be fair and just in the facts and circumstances of the case, I do not see any reason to accede to the request of the ld. DR for a remand at this late stage. It is also pertinent to note that the total assessable value of the confiscated goods is just an amount of Rs. 53,000.00 even according to the Department. A fine of Rs. 18,000.00 or a penalty of Rs. 5,000.00 cannot be held to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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