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TMI Blog2010 (2) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Y. Hariprasad, CGSC, for the Petitioner. S/Shri Laxminarayan for Kiran S. Javali, Advocates, for the Respondent. [Order per : D.V. Shylendra Kumar, J.]. - Writ petition by the revenue under Articles 226 and 227 of the Constitution of India, directed against the order passed by the Customs, Excise and Gold (Control) Appellate Tribunal (for short, 'the tribunal'), South Zonal Bench at Bangalore, in Appeal No. C/39/2002 dated 11-10-2002 (copy produced at Annexure-A). 2. Under the impugned order, the Tribunal has reversed in totality the order of adjudication passed by the Additional Commissioner of Customs, Bangalore, dated 20-10-2000 [copy produced at Annexure-C) and in part the appellate order passed by the appellate Commissioner of Customs (copy produced at Annexure-D) dated 25-1-2002, to grant full relief to the respondent-assessee, in the sense that the claim of the assessee in respect of nine bales of mulberry raw silk of foreign origin and three bales of dupion silk yarn, which the assessee had admitted to be part of imports made by it from China is a valid import, supported by material indicating a valid import and therefore, the importer should not be subjected t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of the order dated 25-1-2000 at Annexure-D. Thereafter, the assessee appealed further to the Tribunal. 7. The Appellate Tribunal in its turn held in terms of this order dated 11-12-2002 copy at Annexure-A held that there was no duty liability or any penalty leviable on the assessee and has recorded its findings as under :- "5 After hearing both sides and considering the matter, it is found : (a) Silk yarn is not notified under Section 123 of the Customs Act, 1962. Therefore relying upon and following : - (i) Shri Rajat Gupta & Others [2001 (75) ECC 773 (Tri-Bgl)] (ii) Motiur Rahman & Ors. [2001 (47) RLT 353 (CEGAT-Kol)] (iii) Sunil Kumar Agarwal v. CC, Calcutta [2001 (130) E.L.T. 921] And other catena of decisions on this subject, mere failure to show legal acquisition of such yarn would not prove the department" case for confiscation and penalty. The same as imposed are required to be set aside. (b) The mere fact of sale and purchase without bills only raise a question about legal nature of acquisition. That would not by itself be enough to establish smuggled non-duty paid nature of the goods as held in Jatin Mehta v. CC, Mumbai [2000 (120) E.L.T. 108 (Tri)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such appeal is. Scope of a statutory appeal which is in the nature of an appeal is to allow examination of all aspects of the matter as an appellate authority, whereas in a writ petition, the jurisdiction is confined to judicial review of administrative actions or even of quasi judicial action/orders by Tribunals. 12. It is in this background, Sri Hariprasad, learned Central Government Standing Counsel has submitted that this Court even if is not inclined to exercise jurisdiction under Article 226 of the Constitution of India, is always entitled to look into the manner of functioning of a Tribunal in the exercise of its supervisory jurisdiction under Article 227 of the Constitution of India and if something is palpably wrong or which is shocking the conscience of the court is pointed out, this court will not sit on the platform of technicalities not to entertain a writ petition but should examine the position within the parameters of such a petition under Article 227; that while the Commissioner of Customs no doubt could have chosen to prefer an appeal, but at the relevant point of time the Commissioner was more inspired by the Budget Speech in the Parliament wherein the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t writ petition and hold that there is absolutely no impediment for the examination of the writ petition, in the sense, in the absence of an express embargo either under the Constitution or in terms of the legislation as enabled under the Constitution, the question of entertaining or not to entertain the writ petition being within the exclusive discretion of the High Court and on the present set of facts and circumstances, we are, on the other hand inclined to entertain the writ petition to look into the merits of the petition, but however, confine it to the limits of jurisdiction under Article 227 of the Constitution of India. 17. Submission of Sri Hariprasad, learned Central Government Standing Counsel appearing on behalf of the petitioner is that the order of the Tribunal is one without any rhyme or reason, not sustainable in law; that the Tribunal has not assigned any reason at all to reverse or set aside the order passed by the first two authorities in so far as it related to the question of confiscation and levy of penalty and redemption fine and therefore on the face of it the order being a non-speaking order is liable to be quashed and left at that and the order passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of Section 123 of the Act and referring to the case law said to have been relied upon by the learned counsel for the appellant before it which, in our opinion, are totally irrelevant as either the applicability of the provisions of Section 123 of the Act of the presumption arising under this provision are issues in the present case. The assessee had clearly admitted that the goods were of foreign origin and put forth further case of the goods having been licitly imported and if that is so and if the assessee did not produce commensurate documents to support its claim and on the other hand failed to produce the documents, it is obvious that the goods imported are not licitly or validly imported but it is only an illegal importation and therefore the consequence in respect of the goods not properly imported, inevitably visits such goods. 22. In so far as the order of absolute confiscation is concerned, it having been demonstrated and not in dispute that it was not prohibited goods, the confiscation could only be subject to allowing redemption on payment of fine and that has been done by the first appellate authority. There was absolutely no occasion for the Tribunal to h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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