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TMI Blog2009 (3) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... specifically dealt with by the authority the Tribunal should not have any authority to sit on appeal on the said question – appeal is, therefore, partly allowed - 20 of 2008 - - - Dated:- 4-3-2009 - PINAKI CHANDRA GHOSE and RUDRENDRA NATH BANERJEE, JJ. The Court :- This appeal is directed against an order passed by the Customs, Excise and Service Tax Appellate Tribunal, Kolkata whereby the Learned Tribunal held as follows : " However, considering the fact that the Department has not been able to dispose of the sandal wood lying in their custody for a long period of 14 years and the same were legally purchased from the Karnataka State Government Forest Department, this particular case warrants lenient consideration. Accordingly, I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent. Being aggrieved, the respondent filed an appeal before the Tribunal and it was the case before the Tribunal that the semi-finished and unfinished sandal wood pieces had been confiscated by the Customs authority and penalty had been imposed on the firm and on one of the partners of the said firm. It has been stated that there was no fault on the part of the partner or on the part of the firm. The authorized signatory is responsible for violation of the Customs Law as it was submitted that he was not authorized to enter for exporting the entry goods but to keep them finished products in Kolkata and thereafter should have exported the same as it is permitted under the provisions of law and/or the policies. In this background of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termination by this Hon'ble Court is whether an exporter, who has been held guilty of exporting 'prohibiting goods' should be allowed to have the goods redeemed upon payment of fine and penalty and in the event the answer is in the affirmative. He raised the second question that whether the exporter who has been held guilty for exporting prohibited goods should be allowed to redeem the same on a meager fine of Rs. 8 lakhs and penalty of Rs. 2 lakhs against the market value of goods assessed at Rs. 64 lakhs and on the basis of the valuation made in 1994. Mr. Bose also drew our attention to the several provisions of law including Foreign Trade (Development and Regulation) Act, 1992 in particular the following rules were placed before us for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a period of 5 years that is upto 31 st March, 1997. Mr. Bose pointed out before us that it has been specifically mentioned in the General provision regarding exports and imports under the said Notification that the prohibited goods has been specifically mentioned that shall not be imported or exported under Clause 11. It has also been specifically stated under Clause 10 of the said Policy that the goods which would appear in the Negative List restricted for export. According to Mr. Bose the term 'prohibited' has not been defined either in the Foreign Trade (Development and Regulation Act) 1992 or under the Import Export Policy 1992-97. However, definition has been given in respect of the word 'prohibited' under the Customs Act. Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot known, the person from whose possession or custody such goods have been seized,] an option to pay in lieu of confiscation such fine as the said officer thinks fit: Provided that, without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the foods confiscated, less in the case of imported goods the duty chargeable thereon. [(2) Where any fine in lieu of confiscation of goods is posed under sub-section (1), the owner of such goods or the person referred to in sub-section (1), shall, in addition, be liable to any duty and charges payable in respect of such goods]." He further tried to contend before us that in the said section it has been specifically used the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch submission as has been made by Mr. Bose on this point. On the contrary we feel that the power has been given by the legislators to a particular authority to act in a particular manner and the said particular authority must act accordingly and not otherwise at all. Therefore, in our considered opinion that the Tribunal has the right to pass such order by giving an option to pay fine in lieu of confiscation of goods as has been directed to be done by them. So far as the point no.2 is concerned, the discretion as exercised by the Tribunal for awarding the penalty in favour of the respondent firm as well as for the partners, we feel such discretion which has been specifically dealt with by the authority the Tribunal should not have any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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