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TMI Blog2022 (5) TMI 1369X X X X Extracts X X X X X X X X Extracts X X X X ..... purchased order and for that reason he disbelieved the copy of purchased order submitted by the Appellant. However, any prudent man, apart from being a judge, would have got the temptation to call for the lower Court s record and examine the purchase order himself that was being submitted to the adjudicating authority before giving a finding so as to make it rational and believable. The order passed by the Commissioner (Appeals) is illogical, inconsistent and not supported by any reason and therefore contrary to the dictates of Section 129(2), 129(3) after making such further enquiry and 129(4) and in view of plethora decisions, discretionary powers of the Court can be interfered with when the order is arbitrary or perverse. Appeal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdingly Appellant s bank was informed not to clear the bill. Appellant then requested for re-export vide letter dated 29.10.2015 and requested waiver of show-cause also but ultimately adjudication proceeding was initiated against it imposing the above referred fine and penalty that subsequently got confirmed by the Commissioner (Appeals). Appellant is before this Tribunal challenging the legality of the said order. 3. Learned Counsel for the Appellant Mr. Prasannan Nambood submitted that Circular No. 100/2003-Cus. dated 28.11.2003 of the CBEC grants discretionary power to the Commissioner to order for re-export of goods imported as a result of bonafide mistake and contrary to the importer s instruction on payment of nominal penalty or wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing concerning purity detail of the imported products and the said document was never prepared by the Appellant, since required under the procedure of export to be prepared by the Captain of the Air Cargo/Master of the Ship, for which order passed by the Commissioner (Appeals) imposing such fine and penalty needs to be set aside. 5. In response to such submissions learned Authorised Representative for the Respondent-Department Mr. Manoj Kumar, while supporting the reasoning and rationality of the order passed by the learned Commissioner (Appeals), argued that it has been held in the Order-in-Original that clear finding is available about the inapplicability of Circular No. 100/2003-Cus. for lack of evidence and importer s own admission h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of his order, since the Order-in-Original that has been confirmed by him contains a finding that impurity percentage is available in the import manifest but the same is found to be wrong on examination of copy of import manifest of Cathe Specific Airlines, as produced by the Appellant in the appeal memo marked as Exhibit O . Moreover, Appellant s contention that it had not even filed any Bills of Entry prescribing description of the goods imported to put the same in the category of admitted statement is not disputed by any of the Authorities below. I am, therefore, of the considered view that the order passed by the Commissioner (Appeals) is illogical, inconsistent and not supported by any reason and therefore contrary to the dictates o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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