Cc, New Delhi Vs. M/S Deepak Enterprises - Court Judgment

Excerpt:
1. this application filed by revenue is for stay of operation of the order passed by the commissioner of customs upholding the confiscation of the imported goods but with an option to the importer to redeem the goods on payment of a fine of rs. 3 lakhs. the appeal filed by the importer against the confiscation is also before the bench today. the appeal of department is against the grant of option for redemption of the goods.2. heard ld. sdr, sh. a.k. jain for the applicant and ld. advocate sh.l.p. asthana for the respondents.3. ld. sdr submits that the commissioner (appeals) has no authority to grant any option for redemption of the confiscated goods in view of the provisions of section 125 of the customs act. his submission is that the power to grant such an option under section 125 is vested in the adjudicating authority and not on the commissioner (appeals) by virtue of the definition of "adjudicating authority" under section 2(1) of the act. this argument is contested by ld. counsel for the respondents, who submits that the commissioner (appeals) can exercise all the powers of the adjudicating authority while dealing with an appeal filed against any order of the adjudicating authority. he has, in this connection, referred to the provisions of section 128a of the act. making a contextual reference to the subject-matter of these appeals, ld.counsel submits that, though, pursuant to the order of the commissioner (appeals), the party deposited the redemption fine, the goods are yet to be released to them. it is the apprehension of the party that the goods have been withheld on account of the department's appeal filed with the tribunal.4. the argument of ld. sdr that the power to grant option for redemption of confiscated goods under section 125 is vested exclusively in the adjudicating authority and that the commissioner (appeals) has no such power is, prima facie, not impressive. the very provisions of section 128a empower the commissioner (appeals) to confirm, modify or annual the decision of any adjudicating authority, in an appeal filed against such decision. in the instant case, the adjudicating authority ordered absolute confiscation of the goods without providing for redemption thereof. the commissioner (appeals) modified the order of the adjudicating authority by providing for redemption on payment of fine. such a decision, prima facie, appears to be well within the scope of section 128a. in any case, the jurisdictional issue raised by ld.sdr can be agitated at the time of regular hearing in the appeals. the plea of ld. sdr is no ground for the present application. neither in the application nor in the submissions of ld. dr is there anything to justify a stay of operation of the order impugned in these appeals. i, therefore, reject the department's application for stay. nevertheless, having regard to the urgency of the matter put forth by both sides, i would post both the appeals for regular hearing to an early date.accordingly, the appeals are posted for regular hearing to 24.8.2001.

Judgment:
1. This application filed by Revenue is for stay of operation of the order passed by the Commissioner of Customs upholding the confiscation of the imported goods but with an option to the importer to redeem the goods on payment of a fine of Rs. 3 lakhs. The appeal filed by the importer against the confiscation is also before the Bench today. The appeal of department is against the grant of option for redemption of the goods.

2. Heard ld. SDR, Sh. A.K. Jain for the applicant and ld. Advocate Sh.

L.P. Asthana for the respondents.

3. Ld. SDR submits that the Commissioner (Appeals) has no authority to grant any option for redemption of the confiscated goods in view of the provisions of Section 125 of the Customs Act. His submission is that the power to grant such an option under Section 125 is vested in the adjudicating authority and not on the Commissioner (Appeals) by virtue of the definition of "adjudicating authority" under Section 2(1) of the Act. This argument is contested by ld. counsel for the respondents, who submits that the Commissioner (Appeals) can exercise all the powers of the adjudicating authority while dealing with an appeal filed against any order of the adjudicating authority. He has, in this connection, referred to the provisions of Section 128A of the Act. Making a contextual reference to the subject-matter of these appeals, ld.Counsel submits that, though, pursuant to the order of the Commissioner (Appeals), the party deposited the redemption fine, the goods are yet to be released to them. It is the apprehension of the party that the goods have been withheld on account of the department's appeal filed with the Tribunal.

4. The argument of ld. SDR that the power to grant option for redemption of confiscated goods under Section 125 is vested exclusively in the adjudicating authority and that the Commissioner (Appeals) has no such power is, prima facie, not impressive. The very provisions of Section 128A empower the Commissioner (Appeals) to confirm, modify or annual the decision of any adjudicating authority, in an appeal filed against such decision. In the instant case, the adjudicating authority ordered absolute confiscation of the goods without providing for redemption thereof. The Commissioner (Appeals) modified the order of the adjudicating authority by providing for redemption on payment of fine. Such a decision, prima facie, appears to be well within the scope of Section 128A. In any case, the jurisdictional issue raised by ld.SDR can be agitated at the time of regular hearing in the appeals. The plea of ld. SDR is no ground for the present application. Neither in the application nor in the submissions of ld. DR is there anything to justify a stay of operation of the order impugned in these appeals. I, therefore, reject the department's application for stay. Nevertheless, having regard to the urgency of the matter put forth by both sides, I would post both the appeals for regular hearing to an early date.

Accordingly, the appeals are posted for regular hearing to 24.8.2001.