9911796707
TMI Blog1997 (9) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... :- Whether the Tribunal was correct in setting aside the order"(1) after holding that an imposition of penalty in Section 112 could not be legal when there was no finding in regard to the liability of the goods to confiscation; and Whether the Tribunal was correct in setting aside the order(2) of the Central Board of Excise and Customs without considering the order of the finding of the Board that there were no materials suggesting involvement of the applicants in arranging importation of the goods knowing the shipment to be after the expiry of the validity of the licence." 2.The petitioner had brought 658 drums of R.B.D. Palmolein by the vessel "M.V. LADY KRISHTINA" which arrived at the Port of Madras and sought clearance against a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 25-1-1980 reiterating their earlier reply dated 8-10-1979 to the department's letter dated 6-10-1979 with supporting materials and records to substantiate their stand and that no action can be taken against them in the absence of authentic information and evidence, merely acting on presumptions, assumptions and surmises. Reliance was also placed upon Section 3 of the Bill of Lading Act and they denied the accusation that the Bill of Lading was a manipulated document. The Collector, by his proceedings dated 29-9-1980, while confirming the stand taken in the show cause notice that the shipment could not have been on 26-3-1979, held that it is the importers who stood to benefit rather than the shippers by the Bill of Lading and consequently, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act. The appeal was allowed. 4.Thereafter, the Government of India seems to have invoked their power of Revision under Section 131(3) (prior to its amendment) and after the constitution of the Tribunal, transferred the same under Section 131B of the Act to the Tribunal for being dealt with as an appeal. The Tribunal, by its Order in C (T) Appeal No. 199 of 1981 (MAS), dated 24-12-1985, noticed the fact that a finding as such is lacking in the order of the Collector that the goods are liable to confiscation and the plea of the petitioner that there is no finding in regard to liability of the goods to confiscation and hence the order of imposition of penalty under Section 112 would not be legal is a valid one. In spite of such a conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal. Per contra, Mr. S.R. Sundaram, learned Additional Central Government Standing Counsel, while adopting the reasoning of the Tribunal, contended that the host of materials available would lead to the conclusion that the goods are liable for confiscation and the adjudicating authority was rightly directed to deal with the matter relating to confiscation, afresh. Both the learned Counsel invited our attention to the relevant provisions of the Act and also the orders passed by the various authorities to support their respective stand. 6.We have carefully considered the submissions of the learned Counsel appearing on either side and we are of the view that the grievance of the petitioner cannot be considered to be of no substance. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because though the show cause notice proposed such confiscation also in addition to levy of penalty no such order of confiscation was made at all and only penalty simpliciter was imposed. Even if it is a lapse or miss on the part of the Adjudicating Authority, the question of confiscation, as the provisions of the Act then stood, had gone beyond the reach and consequently, the Tribunal could not attempt to set the clock back, at any rate, on the peculiar facts and circumstances of the case. In our view, no exception could be taken to the order of the Board and as a matter of fact, the Tribunal also did not record any finding that the order of the Board suffered any infirmity warranting the interference of the Tribunal, in the matter. Conse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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