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TMI Blog2016 (9) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 3(3) of the Foreign Trade (Development & Regulation) Act, 1992. However, the Joint Commissioner has allowed the petitioner to redeem and re-export the goods on payment of redemption fine of Rs. 3,50,000/- and imposed a penalty of Rs. 25,500/- and imposed a penalty of Rs. 90,000/- under Section 112(a) of the Customs Act by its order, dated 19.06.2015. 3. Against the said order, the respondent had filed an appeal before the Commissioner of Customs (Appeals), Customs House, Chennai, in C4-I/352/0/2015-Air. On hearing both sides, the Commissioner of Customs (Appeals-I) was pleased to modify the order passed by the Joint Commissioner of Customs by reducing the redemption from Rs. 3,50,000 to Rs. 2,00,000/- and reduced the penalty from Rs. 90,000/- to Rs. 50,000/- by order made in C.Cus-I No.398/2015 in C4-I/352/O/2015, dated 24.08.2015. 4. The further case of the petitioner is that though the order of the appeal was delivered to him on 31.08.2015, but the respondent has not implemented the order of the Commissioner of Customs (Appeals) Air, Chennai. The petitioner came to know that there was no revision filed by the respondent before the revisional authority and not obtained any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced any particular that when the revisional authority has issued the notice to the petitioner? and what was the date fixed by the revisional authority for hearing and dispose of the case? 8. Once the appellate authority, namely, the Commissioner of Customs has passed the order on 24.08.2015 and without obtaining any order of the stay of the appeal, the respondent should not keep themselves by disobeying the order passed by the appellate authority. 9. Since the Appellate Authority (Commissioner (Appeals)), after taking into consideration the facts and circumstances granted a partial relief to the Petitioner while declining to interfere with the order for redemption for re-export be reducing the redemption fine and personal penalty. It appears that the Department has not accepted the order and has filed revisions under Section 129DD of the Customs Act, 1962. However the proof of filing such revision has not been readily placed before this Court though it has been stated that the date of filing of the Revision Petition in case to case varies and revisions have been preferred on 16.12.2015. While considering a similar situation, this Court in W.P.No.18536 to 18538 of 2016 has passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal. The Principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not acceptable to the department in itself an objectionable phrase and is the subject matter of an appeal can furnish on ground for not following it unless its operation has been suspended by a competent Court. If this healthy rule is not followed, the result will only be undue harassment to assessment and chaos in administration of tax laws. 7. The impression or anxiety of the Assistant Collector that, if he accepted the assessee's contention, the department would lose revenue and would also have not remedy to have the matter rectified is also incorrect. Section 35E confers adequate powers on the department in this regard. Under sub-section (1), where the Central Board of Excise and Customs (Direct Taxes) come across any order passed by the Collector of Central Excise with the legality or propriety of which it is not satisfied, it an direct the Collector to apply to the Appellate Tribunal for the determination of such points arisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and the pendency of the said appeal, cannot be shown as sufficient grounds for not giving effect to the order of the Commissioner of Customs (Appeals), dated 16.9.2011. Even though the National Centre for Mass Spectrometry, Indian Institute of Chemical Technology, Hyderabad, had by its communication, dated 9.12.2010, had opined that the samples of the goods imported sent to it, did not show any presence of pesticides or Oxymatrine, the refusal of the respondents to release the goods in question cannot be held to be valid in the eye of law. 18. It cannot be said that the mere filing of an appeal, against the order of the appellate authority, would not empower the respondents to deny the release of the goods in question. No proper explanation had been given by the respondents, as to why no stay order had been obtained against the order of the Commissioner of Customs (Appeals), Chennai, dated 16.9.2011, even though the said order is said to have been challenged by way of a further appeal. Further, the petitioner cannot be made to suffer due to the detention of the goods in question, which had been imported by the petitioner, under Tariff Heading 1302 1990 of the Customs Tariff Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Final Order No.174/2006 dated 20.3.2006 of the Customs, Excise and Service Tax Appellate Tribunal, Chennai. 15. Accordingly, the Writ petition is allowed. The third respondent shall release the above said goods covered by the said Bill of Entry on or before 7.4.2006. 13. In another decision of the Hon'ble Supreme Court in the case of Collector of Customs, Bombay vs. Krishna Sales (P) Ltd., reported in AIR 1994 SC 1239, it was held as follows:- "If the authorities are of the opinion that the goods ought not to be released pending the Appeal, the straight forward course for them is to obtain an Order of Stay or other appropriate direction from the Tribunal or the Supreme Court, as the case may be. Without obtaining such an Order they cannot refuse to implement the Order under Appeal. As is well-known, mere filing of an Appeal does not operate as a Stay or suspension of the Order appealed against. Moreover, such detention is likely to create several complications relating to the demurrage charges besides the possible deterioration of the machinery and goods. We hope and trust that the Collector of Customs, Bombay shall appropriately revise the said public notice in the light ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the goods would, no doubt, reduce its potency and its market value would deteriorate to the detriment of the petitioner. In this case, there is nothing has been shown on behalf of the respondent to substantiate their claim that necessary steps had been taken to obtain interim order of stay against the order of the authority dated 24.08.2015. 16. I am also convinced that mere filing of the revision against the order of appellate authority would not empower the respondent to deny release of the goods in question and the respondent have not given any proper explanation as to why no stay order has been obtained against the order of the Commissioner of Customs (Appeals) dated 24.08.2015, even though the said order said to have been challenged by way of further appeal. Therefore, in my considered opinion that the petitioner cannot be made to suffer due to detention of the goods in question, which had been imported by the petitioner, hence, the petitioner is entitled to get release of the goods. Accordingly, the writ petition is liable to be disposed of directing the respondent to release the goods (gold) for the purpose of re-exporting subject to the petitioner complying with the cond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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