1 cuapp18.11gp.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CUSTOMS APPEAL NO. 18 OF 2011 Commissioner of Customs (CSI Airport) ......Appellant. Vs. M/s. Deepali Exports ......Respondent ALONG WITH CUSTOMS APPEAL NO. 19 OF 2011 Commissioner of Customs (CSI Airport) ......Appellant. Vs. M/s. Vijaybhav ......Respondent ALONG WITH CUSTOMS APPEAL NO. 25 OF 2011 Commissioner of Customs (CSI Airport) ......Appellant. Vs. Pushpak Impex ......Respondent ALONG WITH CUSTOMS APPEAL NO. 26 OF 2011 Commissioner of Customs (CSI Airport) ......Appellant. Vs. Vaibhav Exports ......Respondent ALONG WITH CUSTOMS APPEAL NO. 3 OF 2011 M/s. Vijaybhav ......Appellant Vs. Commissioner of Customs & Ors. ......Respondents. 2 cuapp18.11gp.sxw ssm ALONG WITH CUSTOMS APPEAL NO. 4 OF 2011 M/s. Deepali Exports ......Appellant Vs. Commissioner of Customs & Ors. ......Respondents. Mr. Pradeep S. Jetly with Mr. Jitendra B. Mishra for the Appellant in CUAPP Nos. 18/2011, 19/2011, 25/2011 and 26/2011 and for the Respondents in CUAPP Nos. 3/2011 and 4/2011. Mr. Ashutosh Kumbhkoni i/by Advani Sachwani and Heera for the Appellant in CUAPP Nos. 3/2011 and 4/2011 and for the Respondent in CUAPP Nos. 18/2011, 19/2011, 25/2011 and 26/2011. CORAM :- DR. D.Y. CHANDRACHUD AND ANOOP V. MOHTA, JJ. DATE :- 8 AUGUST 2011. P.C. :- These are four Appeals by the Revenue and two appeals by the Assessee arising out of a common Judgment and order of the Customs, Excise and Service Tax Appellate Tribunal dated 24 November 2010. 2 The Commissioner of Customs initially passed an order of adjudication dated 11 July 2003. The Commissioner passed an order of confiscation of rough diamonds and imposed personal penalties. 3 cuapp18.11gp.sxw ssm The order of the Commissioner was carried in Appeal and resulted in an order of the CESTAT dated 13 June 2006. Against the order of the CESTAT, seven Appeals were filed by the Revenue, while a Petition was filed by the Assessee for enforcing the order of the Tribunal. A Division Bench of this Court, consisting of Mr. Justice F.I. Rebello and Mr. Justice J.H. Bhatia pronounced judgment on 31 July 2009. Subsequently, on 30 April 2010 the Division Bench recalled the earlier judgment in exercise of the inherent jurisdiction of this Court and restored the Appeals and the Petition for rehearing on merits. In the course of the Judgment, the Division Bench of this Court observed that the Court had proceeded on the basis that the diamonds, which were the subject matter of the redemption fine, were available for redemption and it had come on the record that the diamonds were, as a matter of fact not available. 3 In this view of the matter, the earlier judgment was recalled and the Appeals were set down, together with the Petition, for fresh hearing. Thereupon by a judgment dated 25 August 2010, a Division Bench of this Court set aside the order of the Tribunal and remanded the proceedings back to the Tribunal for reconsideration. Upon remand, the Tribunal has passed its impugned order dated 24 4 cuapp18.11gp.sxw ssm November 2010. All the Appeals were admitted and have been taken up for hearing. 4 On behalf of the Revenue, it has been submitted that the impugned order of the Tribunal is ex-facie unsustainable since the Tribunal, upon remand, has relied upon observations contained in the Judgment of the Division Bench dated 31 July 2009, which has been recalled. Counsel submitted that upon remand, the Tribunal was seized with an Appeal arising out of the order passed by the Commissioner and all issues, which arose out of that order, fell for determination before the Tribunal. However, the Tribunal has misconstrued the nature of its jurisdiction by erroneously placing reliance on the Judgment of the Division Bench dated 31 July 2009, which has been recalled. This aspect of the submission has not been disputed by Learned Counsel for the Assessee; Counsel, however urged that this Court should consider all the issues in the Appeals here, to obviate an order of remand. 5 Ex-facie, the impugned order of the Tribunal would reveal that the Tribunal has placed extensive reliance on the Judgment of the Division Bench dated 31 July 2009 as the basis of its decision. In 5 cuapp18.11gp.sxw ssm paragraph nine of the decision, the Tribunal has observed as follows:- “In the instant case, the live consignments were confiscated and there was no permission to the importers for clearing the goods. The stigma of offence committed by the importers remained with these goods. However, a part of these goods were not covered by any Bills of Entry and, therefore, the benefit given by the Hon’ble High Court in its judgment dated 31/07/2009 should be available to them. In respect of the rest of the goods (rough diamonds) covered by Bills of Entry filed by the importers, there is an order of confiscation under Section 111(d) of the Customs Act which was affirmed by the Hon’ble High Court in judgment dated 31/07/2009. At this stage, the appellants have not pressed their grievance against such confiscation of the goods. The question before us is whether, in lieu of confiscation, a redemption fine should be imposed and, if so, to what extent. We find that the Hon’ble High Court, after detailed examination of the circumstances of the case, held that 20% of the value of the goods would be a reasonable redemption find under Section 125 of the Act. Learned counsel have pleaded for reduction of the quantum of fine on the ground that the disposal of the goods by the department virtually denied to the appellants an opportunity to make profit out of sale of the goods in the market. This argument is specious and not acceptable. Section 125 of the Customs Act lays down the contours for determination of the quantum of fine to be imposed in lieu of confiscation of any goods imported into India. These contours are not based on the premise that the goods will physically be available to the importer for sale in the market. On the other hand, this Tribunal and appellate courts have imposed redemption fine in very many cases where the imported goods were not physically available for confiscation after their clearance under bond. We are of the considered view that the fine determined by the Hon’ble High Court be appropriate to the facts and circumstances of this case. Accordingly, we hold that the importer- 6 cuapp18.11gp.sxw ssm appellants are liable to pay redemption fine @ 20% of the value of the goods.” 6 We find merit in the contention of the Revenue that once the decision that was rendered by the Division Bench on 31 July 2009 was recalled by the Court in the exercise of its inherent jurisdiction by the order dated 30 April 2010, it was impermissible for the Tribunal to rely upon the observations contained in the earlier Judgment. As a matter of fact, subsequently on 25 August 2010, the proceedings were remitted back to the Tribunal for de novo consideration. The order of remand passed by the Division Bench reads as follows:- “In the result, accepting the contentions advanced by both the parties and on the joint motion made by them, without examining the merits or demerits of the impugned order, the same is set aside. All these appeals are remanded back to the Tribunal restoring them to their file with direction to decide the same by a reasoned order following principles of natural justice taking into account the subsequent information acquired by the parties. All rival contentions on merits are kept open. The Tribunal is expected to dispose of the appeals with expeditious despatch at any rate within a period of eight weeks from the date of receipt of copy of this order.” 7 As a result, the Tribunal was seized of Appeals which arose out of the original order passed by the Commissioner of Customs on 11 July 2003. It is the legality of that order, which had to be considered 7 cuapp18.11gp.sxw ssm by the Tribunal. Since the Tribunal has failed to do so, we are of the view that it is not appropriate for this Court to express any opinion on the questions of law and fact which are raised and the appropriate order to pass would be to remit the proceedings back for fresh consideration in accordance with law. To facilitate this, we set aside the impugned order dated 24 November 2010. The Appeals shall stand restored to file of the Tribunal for fresh consideration. 8 In this view of the matter, we keep open all the rights and contentions of the parties including on questions of law and fact. 9 On remand, we request the Tribunal to expedite the disposal of the Appeals preferably within a period of three months from the date on which an authenticated copy of this order is produced before the Tribunal. Counsel are agreed that they would jointly move the Tribunal for expeditious hearing. 10 The Appeals are accordingly disposed of. (ANOOP V. MOHTA, J.) (DR. D.Y. CHANDRACHUD, J.)