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TMI Blog2014 (12) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... r Port, Chennai. 2. Brief facts of the case are that the applicant arrived at Chennai Airport from abroad. He had attempted to smuggle 29 gold bars and 3 gold coins totally weighing 3402.5 grms valued at Rs. 13,84,818 (IV) and Rs. 14,15,440 (MV) concealed in 'Eveready' brand 1.5 Volt Batteries which were then seized under a mahazar. The adjudicating authority vide order (original) No. 31/2001, dated 13-6-2001 issued in File No. OS 247/2000-INT had confiscated absolutely the said gold bars and gold coins and imposed a penalty of Rs. 2,50,000/-. Aggrieved by this order, the party preferred an appeal before the CESTAT. CESTAT vide its final order No. 381/07, dated 27-3-2007 while upholding the confiscation of the gold directed the adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portunity to the applicant before passing the impugned order. Further without hearing the applicant he has passed the impugned order which violating the natural justice and guarantee given under Constitution of India. 4.3 The department disposed the gold while pursuing the appeal is bad and hence the gold is liable to be returned. Since the department knowing well the case is sub judice without giving any care dispose the gold is arbitrary and mockery of justice and also abuse of process of law and also contempt of court. Thus it is clearly proved that the department did wrong and hence authority cannot escape from the liability and hence the department should return the gold as per order of the Commissioner of Customs. Further it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lizing Rs. 17,908/- vide MC No. 0304088, dated 30-3-2006. Totally, an amount of Rs. 25,98,108/- was realized in respect of the aforesaid confiscated gold. Though the gold has been disposed as mentioned above in the year 2006 but the working sheet disclosed that the warehouse charges collected from 14-12-2000 to 30-3-2006 and 30-3-2006 to 30-9-2010. If the adjudicating authority had applied its mind on the material properly would not have collected the warehouse charges period even after goods disposed of. Thus it is clearly proved that the adjudicating authority failed to apply its mind while passing the impugned order and hence the order is liable to be rejected on this point alone. 4.7 The adjudicating authority has accorded sanctio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under Section 125 of Customs Act, 1962 and imposed a penalty of Rs. 2,50,000/-. The applicant preferred appeal before CESTAT who reduced redemption fine and personal penalty to Rs. 5,00,000/- and Rs. 1,00,000/- respectively vide final order dated 19-5-2009. Since the impugned gold had been disposed of by the department on 4-1-2006 and 30-3-2006 respectively and realised an amount of Rs. 25,98,108/- the applicant filed a claim for refund of Rs. 11,50,000/- with interest on 3-11-2009. The adjudicating authority however sanctioned a refund of Rs. 11,35,959/- only after adjusting pre-deposit and deducting duty, redemption fine, penalty, warehousing charges and handling charges from the sale proceeds of the impugned goods. In appeal, the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bir Admed Abdul Rehman and judgment of Hon'ble CESTAT 2011 (263) E.L.T. 685 (Tri.-Mumbai) - Yakub Ibrahim Yusuf v. Commissioner of Customs, Mumbai. However, I find that the CESTAT's judgment relies on the judgment of the Hon'ble High Court, Mumbai and this judgment has been stayed by the Apex Court vide order dated 15-5-2009 in SLP No. CC6571/9 [2010 (253) E.L.T. A142 (S.C.)]. The Hon'ble CESTAT, South Zonal Bench, Chennai in the case of Commissioner of Customs, Trichy v. K. Balaganesan [2011 (268) E.L.T. 498 (Tri.-Chennai)] has observed that : * "para-21. After all, the sale price is only the cum-duty price. If the duty element from the sale proceeds is also given to the respondents, they would be unjustly enriched as they would be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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