M/S. Indiport Footwear Pvt. Ltd vs Commissioner Of Customs (Air), Chennai
- CitationAppeal No.C.Cus. No.1192/2012, dated 25.10.2012 passed by the Commissioner of Customs (
Ratio decidendi
The rule this decision rests on
In appeal, where the Revenue has not filed an appeal or cross-objection against an order of the adjudicating authority, the appellate authority cannot reverse or enhance the relief granted to the assessee in favour of the Revenue. Before enhancing a penalty or otherwise altering an order to the detriment of a party who has not appealed, the appellate authority must issue notice and give that party an opportunity to be heard, explaining why such enhancement is necessary. Where the appellate authority enhances a penalty without issuing such notice and without recording reasons for discarding the adjudicating authority's quantum beyond acting as a revisionary authority, the enhanced penalty cannot be sustained and the penalty imposed in adjudication is restored.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No.C.Cus. No.1192/2012, dated 25.10.2012 passed by the Commissioner of Customs (Appeals), Chennai]
M/s. INDIPORT FOOTWEAR PVT. LTD. APPELLANT
Versus
COMMISSIONER OF CUSTOMS (AIR), CHENNAI RESPONDENT
Appearance:
For the Appellant Shri Hari Radhakrishnan, Adv.
For the Respondent Ms. Indira Sisupal, AC (AR)
CORAM:
Honble Shri D.N. Panda, Judicial Member
Date of hearing/decision 29-05-2015
FINAL ORDER NO. 40589 / 2015
The challenge of the appellant in this appeal is that redemption fine should not have been imposed even though that was reduced to Rs.80,000/- from Rs.1,00,000/- by Commissioner (Appeals). Similarly, penalty equal to duty of Rs.1,19,541/- should not have been imposed.
2. Record reveals that the Commissioner (Appeals) acted without issuance of notice to enhance penalty when Revenue was not in appeal before him. Law is well settled that in absence of appeal or cross objection by other side, the relief granted by a lower authority to a prty cannot be reversed by an appellate authority. The appellate authority found no material on record to appreciate perversity of the order of Adjudicating authority. When he proposed to enhance penalty, he should have issued notice following the course of natural justice bringing out why such enhancement was necessary in absence of appeal or cross objection by Revenue before him. He has not done so. Added to that, section 114 (ii) of the Customs Act, 1962 gives wide latitude to the Customs officer with an upper edge in respect of levy of penalty. Considering that duty was paid, Customs authority imposed penalty of Rs.50,000/-. Learned Commissioner (Appeals) did not advance any reason in his order to discard the quantum of levy of penalty of Rs.50,000/- except acting like a revisionary authority. Therefore, his order on this count does not sustain and Penalty is reduced to Rs.50,000/- (Rupees Fifty Thousand only) what that was imposed in adjudication.
3. On the account of redemption fine, there is no material from the appellant to suggest that redemption fine should not have been imposed. There appears no reason to intervene to the quantum of redemption fine determined by learned Commissioner (Appeals). The appellant fails on this count but succeeds on the count of penalty. Appeal is thus partly allowed.
(Dictated and pronounced in open court)
(D.N. PANDA) JUDICIAL MEMBER
ksr 29-05-2015
DRAFT Remarks
I II III
Date of dictation 29.05.2015
Draft Order - Date of typing 29.05.2015
Fair Order Typing 29.05.2015
Date of number and date of dispatch 01.06.2015
4 C/40055/2013
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