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TMI Blog2016 (5) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... e where the appellant conceded and gave up the issue of confiscation of goods and redemption fine, but I found that appellant has not conceded on the issue of confiscation and penalty, therefore while remanding the matter by this Tribunal to the Commissioner (Appeals), all the issues were kept open to reconsider by the Commissioner (Appeals). Commissioner (Appeals) decided the issue of personal penalty in isolation without deciding the confiscation and redemption fine on merit. Therefore, the impugned order deserves to be set aside and matter to be remanded to the Commissioner (Appeals) to decide all the issues involved in the appeal filed by the appellant. As regard submission of the appellant that since goods have been sold by the depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 545 dated 04-12-2002 and 568970 dated 18-02-2003 and submitted copies of said Bills of Entry. Investigating Agency drawn the sample from the seized goods and got it tested and chemically examined. As per the report, the goods seized and imported under said Bills of Entry are not matching. Show cause notice was issued proposing the confiscation of the seized goods and also penalty on Shri Harish G. Bulchandani under Section 112(a) and 112(b). In the adjudication order, the goods were confiscated under provisions of Section 111(d) and 111(j) of Customs Act, 1962 and a penalty of Rs. One lakh was imposed. 3. Aggrieved by the Order-in-Original No. 9/SD-9/2004/Thane-I dated 28-9-2004, the appellant filed an appeal before the Commissioner (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not conceded at any stage to give up the issues of confiscation. The Ld. Commissioner only on going with the Tribunals order which mentioned issue involved in this case on personal penalty taken a view, that in remand proceeding, the only issue decided by him, is of penalty. He submits that this mention in the order was in context with the stay application, only for the reason that the appeal was disposed by way of remand by considering the pre-deposit of penalty only. However the Tribunal has, at the same time, directed the Commissioner (Appeals) to reconsider the issue and pass a fresh order on merit. Therefore, all the issues raised before the Commissioner (Appeals) as well as the Tribunal was supposed to be decided by the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved that the only issue involved in personal penalty on the appellant. Therefore, the Ld. Commissioner (Appeals) has decided the matter only in respect of personal penalty and not decided the confiscation redemption fine etc. He submits that there is no infirmity in the Ld. Commissioner (Appeals)s order as he only complied with the observation taken by this Tribunal in the remand order. 7. I have carefully considered the submissions made by both the sides. 8. The main issue to be decided in the present case is whether the Commissioner (Appeals) was to decide only personal penalty or the issue of confiscation, the penalty and redemption fine related thereto. The earlier Tribunal s remand order while disposing of the stay application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder on merit. He shall pass a fresh order within 4 weeks from receipt of this order. Further I order that the appellant should pay ₹ 5000/- as costs and produce proof of the same before the Ld. Commissioner (Appeals), who, on production of such proof, shall hear and dispose the appeal on merits. As per the above para 3 of the order, it can be seen that in the stay application the issue involved was the waiver of pre-deposit of penalty. For that reason it was mentioned the issue involved in this case is challenged towards the penalty imposed upon the applicant by the adjudicating authority. However in the para, as regard to the appeal, the Honble Member has mentioned that he is unable to go into merit of the case and the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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