:1: cuapp-4.07andors bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CUSTOMS APPEAL NO.4 OF 2007 The Commissioner of Customs ..Appellant Vs. M/s.Vaibhav Exports ..Respondent CUSTOMS APPEAL NO.10 OF 2007 The Commissioner of Customs ..Appellant Vs. M/s.Deepali Exports ..Respondent CUSTOMS APPEAL NO.11 OF 2007 The Commissioner of Customs ..Appellant Vs. M/s.Pushpak Impex ..Respondent CUSTOMS APPEAL NO.35 OF 2007 The Commissioner of Customs ..Appellant Vs. M/s.Vijaybhav ..Respondent CUSTOMS APPEAL NO.36 OF 2007 The Commissioner of Customs ..Appellant Vs. M/s.Munjani Bros. ..Respondent CUSTOMS APPEAL NO.37 OF 2007 The Commissioner of Customs ..Appellant Vs. M/s.D.S.Bros. ..Respondent CUSTOMS APPEAL NO.75 OF 2009 The Commissioner of Customs ..Appellant Vs. M/s.Kiran Exports ..Respondent :2: cuapp-4.07andors Mr.R.Ashokan for the appellant in all appeals. Mr.A.Sachwani with V.M.Advani & Mr.R.R.Shah i/b. Advani Sachwani & Heera for the respondents in all appeals. WITH APPELLATE SIDE WRIT PETITION NO.7516 OF 2006 M/s.Deepali Exports & Anr. ..Petitioners Vs. Union of India & Ors. ..Respondents Mr.A.Sachwani with V.M.Advani & Mr.R.R.Shah i/b. Advani Sachwani & Heera for the petitioners. Mr.R.Ashokan for respondents. CORAM :- V.C.DAGA & R.M.SAVANT,JJ. DATE :- 25th AUGUST, 2010 P.C. 1. All these appeals have been preferred by the Revenue raising following substantial questions of law: a) Whether in the importation of restricted goods under forged REP licences is invalid and void-ab-initio and liable for absolute confiscation under section 111(d) of the Customs Act,1962 ? b) Whether in the facts and in the circumstances of the case and in law the Tribunal was justified in setting aside the penalty imposed under section 112(a) of the Customs Act,1962 upon the respondents by the Commissioner of Customs, in respect of rough diamonds imported on the strength of forged licences, which were ordered to be confiscated under section 111(d) of the Customs Act,1962 but was available for confiscation ? 2. The Writ Petition No.7516 of 1987 has also been filed by the assessee to seek implementation of the order of the Tribunal. 3. The learned Division Bench presided over by Shri F.I.Rebello,J. (as he then was) by judgment dated 31st July, 2009 was pleased to modify the order of the Tribunal and enhanced the penalty. Similarly, a redemption fine was permitted to be @ 20% of the diamonds seized from M/s.Dipali Exports and :3: cuapp-4.07andors M/s.Vijay Bhav Exports. After the said judgment dated 31st July, 2009, a Review Petition was moved by the petitioners/appellants bringing it to the notice of the learned Division Bench that the diamonds, in fact were not available for release on payment of redemption fine when the order was passed. The learned Division Bench refused to exercise review jurisdiction for want of power. However, thought it fit to recall its order dated 31st July, 2009 in exercise of inherent powers and jurisdiction so that both parties could get fresh opportunity to argue these appeals. All these appeals were thus restored to file for being heard and disposed of on merits vide order dated 30th April, 2010. That is how all these appeals are now placed for hearing before this Court. 4. Mr.Ashokan, learned Counsel appearing on behalf of the Revenue urged that the Tribunal as well as Division Bench presided over by Shri Rebello,J. (as he then was) had proceeded on the assumption that the diamonds were available. 5. Now, it has come on record that the diamonds are not available. In that view of the matter, if the Division Bench was pleased to recall its earlier order dated 31st July, 2009, on the same premises, the impugned order of the Tribunal needs to be set aside and all these matters need to be remanded back to the Tribunal for consideration afresh, taking into account the fact that the diamonds are not available. 6. On being asked, learned Counsel for the respondent fairly conceded to the submission made by Mr.Ashokan and agreed that the impugned order needs to be set aside, since it is based on the premise that the diamonds were available for confiscation. He, thus, submits that in view of the subsequent material finding placed on record, the impugned order can conveniently be set aside without examining the merits and demerits and directions can be issued to the Tribunal to decide the appeals afresh on remand. :4: cuapp-4.07andors 7. 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. 8. In view of the above order, the cause of action to proceed with Writ Petition No.7516 of 1987 does not survive. Petition is, thus, liable to be dismissed. 9. In the result, all appeals together with the petition stands disposed of with no order as to costs. (R.M.SAVANT,J.) (V.C.DAGA,J.)