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TMI Blog2006 (4) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... Jogeshwari Branch. (iv) amount equivalent of US $ 1,07,450 (Rs. 38,57,455 @ 35.9) available with WSFL. (v) amount equivalent to US $ 2,92,850 (Rs. 1,05,13,35 $ 35.9) available with M/s. AFS. (vi) amount of Rs. 54,75,750 belonging to M/s. TTC and Riyaz Arif Retiwala and unauthorisedly adjusted by M/s. WSFL against liabilities of M/s. TTC. (vii) amount of Rs. 9.5 lakhs seized on 31-10-97 lying in the fixed deposit account of M/s. TTC in Union Bank of India, Versova Branch. (viii) amount of Rs. 1,25,259.68 seized on 31-10-97 lying as closing balance in the current account number 30033 of M/s. TTC in Union Bank of India, Versova Branch. (ix) amount of Rs. 1,06,150 seized on 28-5-97 from the premises of M/s. TTC. (x) amount equivalent of US $ 1200 (Rs. 43,080 @ 35.90) seized on 28-5-97 from the premises of M/s. TTC. (a) should not be confiscated under the provisions of Section 121 as also under Section 113(d) of the Customs Act, 1962. (b) the country craft 'Ya Hajipir' having registration No. MNV-1048/mandvi seized on 29-5-97 which was used for smuggling of the foreign currency seized on 27-5-97 on board the count ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lank stock of TCs would be issued to TTC at any given time within the over all limit agreed. The TCs were to be sold by TTC as per the terms and conditions of the licence granted to TTC as FFMC by RBI and as per the guidelines and instructions given in the memorandum of instructions issued by RBI from time to time. The petitioner claims to have neither any control over them nor kept any check on such transactions of sale by TTC. It was submitted that the amount of Rs. 68,00,000/- was received by way of pay orders in the normal course of its said business with TTC and by unlawfully seizing the said two pay orders of Rs. 68,00,000/-, the petitioner was unable to realise the said amount. The petitioner vehemently opposed the proposed confiscation under Sections 113(d) and 121 of the Customs Act and the penalty under Section 114 of the said Act. 6.The Commissioner of Customs (Preventive) recorded the evidence and after hearing the concerned parties, on 23rd June, 1998 passed the following order : "(a) I order confiscation of seized assorted foreign currency including TCs (Sr. No. 108 4702 526 301 to 440 for US$ 70,000) amounting to Rs. 1,43,57,730.15 seized on 27-5-1997 on boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be identifiable with the sale proceeds of smuggled TCs and therefore, I order confiscation of Rs. 23,00,000/- under the provisions of Section 121 of the Customs Act, 1962. M/s. Wall Street Finance Ltd. shall pay the said amount forthwith. (h) I order confiscation of Rs. 9.5 lakhs (along with accrued interest if any) seized on 31-10-97 lying in the fixed deposit account of M/s.TTC in Union Bank of India Versova Branch under the provisions of Section 121 of the Customs Act, 1962. (i) I order confiscation of Rs. 1,25,259.68 seized on 3-10-97 from the Current Account No. 30033 of M/s. TTC in Union Bank of India, Versova Branch under the provisions of Section 121 of the Customs Act, 1962. (j) I order release of an amount of Rs. 1,06,150/-seized on 28-5-1997 from the premises of M/s. TTC. I also order release of blank TCs seized from the premises of M/s. TTC on 28-5-97 amount to US $ 1200. (k) I order keeping the proceeding in abeyance in respect of M/s. Arab Financial Services. 6.Under Section 114 of the Customs Act, 1962, I also impose penalties to following persons/firms. 1. Shri Suleman Esmail Karani : Rs. 5 Lakhs (Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Technical), accordingly, proceeded to deal with the appeal on merits and dismissed the same. 9.It would be, thus, seen from the order of the Tribunal that one Member of the Bench i.e. Member (Judicial) did not consider the merits of the Order-in-Original and decided to dismiss the appeal on the ground that the appellant did not have standing to maintain the appeal. On the other hand, the Member (Technical) held that the appeal preferred by the appellant was maintainable but found no merit in challenging the correctness of the Order-in-Original. In other words, there was difference of opinion amongst the two members of the Bench that heard the appeal on the question of locus standi. On the merits of the case, there is decision by the one Member of the Bench only as the other member did not go into the merits. Surely, such decision is no decision in the eye of law. For ought we no if the Member (Judicial) had gone into the merits, what would have been his decision. 10.The question, now, is whether the petitioner could maintain the appeal aggrieved by the Order-in-Original dated 23-6-1998. In case the present petitioner had no locus to maintain the appeal, in exercise of extraordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. However there is sufficient safeguard made available to the Revenue by the Act of or placing in challenge erroneous orders of adjudication as passed by the Collector of Customs by moving the Central Board of Excise and Customs under Section 129D(1) for a direction to the Collector to apply to the CEGAT for determination of such point arising out of the decision or order as may be specified by the Board of Revenue in this connection. Similarly a statutory remedy is provided to the Collector of Customs in connection with orders of the Appellate Collector of Customs passed immediately before the appointed day and also in connection with the orders passed by Collector of Customs under Section 128A, to direct proper officer to appeal on his behalf as laid down by Section 129A(2). Revisional powers are also conferred on the Central Board of Excise and Customs against the orders of Collectors of Customs as provided by Section 129DA(1) as well as on the Central Government under contingencies contemplated by Section 129DD(1). These are the only statutory modes contemplated by the Act by resort to which the orders of Collector (Customs) could be brought in challenge before higher statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess. It cannot be a general public interest or interest of a business rival as is being projected by the contesting respondents before us." 15.The phrase 'person aggrieved' has been held a wider term than 'party aggrieved'. Sub-section (3) of Section 129A confers right of appeal only to the parties to the proceedings before the adjudicating authority. A third party could earn a locus standi to file appeal as 'person aggrieved' only if it is able to show that it has a direct legal interest in the goods involved in adjudication, such as a party contending that the said goods really belonged to it and not to purported importer. In so far as present case is concerned, the petitioner (appellant therein) was a party to the proceedings before the adjudicating authority. The petitioner was given show cause notice by the adjudicating authority; In response thereto, the petitioner filed reply and objected to the confiscation as well as penalty though the objections of the petitioner were overruled. In this fact situation and in the light of the provisions contained in sub-section (3) of Section 129A of the Customs Act, 1962, the petitioner cannot be said to have no locus to maintain the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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