IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2161 OF 2003 WRIT PETITION NO.2161 OF 2003 WRIT PETITION NO.2161 OF 2003 Union of India through ) Commissioner of Customs, ) Chhatrapati Shivaji International ) Airport, Mumbai - 400 099. )..Petitioner. V/s. 1. Shri Bharat B. Chudasama, ) ) 2. Shri Bhupendra B. Chudasama, ) ) Both residing at C/o. Shri S.R. ) Jethwa, 20, Joshi Chawl, M.D. ) Road, Opp. Power House, ) Kandivali (East), Mumbai-400 101. )..Respondents. Mr.R.V.Desai, senior Advocate with Rajinder Kumar for petitioner. Mr.Narayan Sahu i/b. S.K.Srivastava & Co. for respondents. CORAM : SMT.RANJANA DESAI AND CORAM : SMT.RANJANA DESAI AND CORAM : SMT.RANJANA DESAI AND J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. DATED : 24TH FEBRUARY, 2009. DATED : 24TH FEBRUARY, 2009. DATED : 24TH FEBRUARY, 2009. ORAL JUDGMENT (PER SMT.RANJANA DESAI, J.) ORAL JUDGMENT (PER SMT.RANJANA DESAI, J.) ORAL JUDGMENT (PER SMT.RANJANA DESAI, J.) 1. The petitioner has challenged the orders dated 28/2/2002 and 4/10/2003 passed by the Customs, Excise and Gold (Control) Appellate Tribunal (‘CEGAT’ for short). 2. The brief facts of the case must be stated Bharat B.Chudasama and Bhupendra B.Chudasama (the - = : 2 : = - respondents herein) were passengers on Gulf Air Flight No.GF 0064 dated 13/4/1997 which was to come from Dubai to Mumbai. On specific intelligence that they were smuggling gold into India the officers of DRI, Mumbai interrupted them and 85 foreign marked gold bars and US$ 6215 were found with each of them. Bhupendra Chudasama was found carrying UAE Dhirams 320, one half Riyal of Oman and one note of 100 Baiza of Oman. They had not declared the gold and foreign currency and no duty was paid on the gold. 3. On enquiry it was revealed that the respondents were carrying gold on behalf of one Tahirbhai of Dubai. Show cause notices came to be issued to the respondents and an adjudication order was passed on 30/3/2001 by the Commissioner of Customs. The operative part of the order reads as follows:- "a) confiscation of the said 170 foreign marked bars of gold valued at Rs.95,71,000/- with an option for the passengers to redeem the same on payment of fine of Rs.25 lakhs each in lieu of confiscation. b) Absolute confiscation of US$ 12,450, UAE Dh. 320, Baiza (Omani) 100 and 1/2 Omani Riyal. c) Absolute confiscation of the articles used for packing and concealment of the said foreign marked gold bars. d) Imposition of penalty of Rs.10 lakhs on each of the passengers viz. Shri Bharat B. Chudasama - = : 3 : = - and Shri Bhupendra B. Chudasama. " 4. Being aggrieved by the said adjudication order, the respondents preferred appeals before CEGAT bearing Nos.C/709/2001- Bom and C/710/2001-Bom. The petitioners were also aggrieved by the said adjudication order as according to them in this case absolute confiscation of gold should have been ordered. The petitioners filed appeals in the CEGAT being Appeals No.79 of 2002 and 80 of 2002. 5. By the impugned order dated 28/2/2002 CEGAT reduced the redemption fine from Rs.25 lakhs to Rs.10 lakhs and penalty was reduced from Rs.10 lakhs to Rs.3 lakhs and also currency was ordered to be released. The petitioner moved Misc. application before CEGAT for recalling and stay of the operation of the CEGAT’s order dated 26/2/2001 till final disposal of this appeal. By the impugned order dated 4/10/2002 CEGAT dismissed appeals and the application filed by the petitioners relying on the judgment of the CEGAT in CCE, New Delhi V/s. L.M.L. Ltd. 2002 (143) ELT 431 holding that the order of the Adjudicating Authority had merged with the order of CEGAT dt. 28/2/2002 and hence the petitioners appeals are not maintainable. Hence the petitioners have filed this writ petition. - = : 4 : = - 6. We have heard learned counsel appearing for both the parties. Our attention is drawn to the Judgment of this Court to which one of us (J.P. Devadhar, J.) was a party in Commissioner of C. Ex., Commissioner of C. Ex., Commissioner of C. Ex., Mumbai-II V/s. Godrej Boyce Mfg. Co.Ltd., 2009 (233) Mumbai-II V/s. Godrej Boyce Mfg. Co.Ltd., 2009 (233) Mumbai-II V/s. Godrej Boyce Mfg. Co.Ltd., 2009 (233) E.L.T. 446 (Bom.) E.L.T. 446 (Bom.) E.L.T. 446 (Bom.) wherein this Court considered the applicability of doctrine of merger. After noticing the judgment of the CEGAT in CCE, New Delhi’s case (supra), this Court laid down the following principles:- 1. In the proceedings from which the matter arises, the Court or Tribunal hearing the appeal or revision, should have jurisdiction to decide all issues arising from the said order of the inferior Court or Tribunal from whose order the proceedings arise. 2. The Appeal should not have been dismissed on the ground of limitation or failure to deposit as ordered. The Appeal should have been heard and decided on merits on the issues raised and / or could have been raised including by the Respondent. In such an event the doctrine of merger would apply. 3. If the proceedings are pending before the same Appellate Tribunal the power under Section 35E can still be exercised by the Competent Authority. The doctrine of merger will not apply even if one of the Appeals is dismissed, provided the other appeal is pending. 4. Even if the Appeal preferred under Section 35B has been disposed off, an appeal can still be preferred pursuant to direction issued under Section 35-E, if in the appeal disposed off, the entire order was not the subject matter of the Appeal. 7. In our opinion, in view of the above, it is - = : 5 : = - necessary to set aside the impugned orders and remand the matter to the Tribunal for de novo consideration in the light of the Judgment of this Court in Godrej & Boyce Mfg. Co. Ltd. (supra). Hence the following order. a) The impugned orders dated 28/2/2002 and 4/10/2002 are quashed and set aside and the matter is remanded to CEGAT for de novo consideration independently in the light of the judgment in Commissioner of C.Ex., Mumbai-II V/s. Godrej & Boyce Mfg. Co. Ltd. [2009 (233) E.L.T. 446 (Bom.)]. b) All contentions of the parties are kept open. c) The CEGAT is directed to dispose of the matter within 3 months from the date of receipt of this order. 7) The petition is disposed of accordingly. (SMT.RANJANA DESAI, J.) (SMT.RANJANA DESAI, J.) (SMT.RANJANA DESAI, J.) (J.P.DEVADHAR, J.) (J.P.DEVADHAR, J.) (J.P.DEVADHAR, J.)