Decided on January 12,2015



R.K.Singh, Member (T) - (1.)THE appellants filed this appeal against OIA No. 157/2012/CUS/Commr.(A)/KDL dated 03.09.2012 which upheld the OIO No. KDL/ADC/Satyajit/1891/GR -2/2011 dated 28.9.2011, except to the extent that the amount of penalty was reduced from Rs. 2,50,000/ - to Rs. 1,71,247/ -. The appellants have contended that the Additional Commissioner had earlier passed an order (i) enhancing of the value from US$ 80 Per MT to US$ 124.04 Per MT (ii) confiscating the impugned goods (iii) imposing redemption fine of Rs. 5 Lakh and penalty of Rs. 2.50 Lakhs and allowed clearance thereafter, after cutting beed wire. The appellants contended that, as the Additional Commissioner who ordered as aforesaid got transferred before issuing a formal speaking order, the subsequent Additional Commissioner issued the said order -in -original which in addition to the order of the earlier Additional Commissioner, put the following additional conditionalities for release of the goods: - -
"(i) The goods will be redeemed only on import license issued by DGFT, and

(ii) After getting permission from the Ministry of Environment and Forest."

The appellants contention is that the subsequent Additional Commissioner could not have modified the order of the earlier Additional Commissioner as the former is not an appellate authority or a revisionary authority viz -a -viz the latter.

(2.)THE learned AR, on the other hand contended that the order was issued after hearing the appellants when they had not taken this plea and thus supported the impugned order.
We have considered the contentions of both sides. At the very outset, it may be stated that there is no bar against pleading a law point at any stage. There is force in the appellants contention that subsequent Additional Commissioner could not have modified the order of the earlier Additional Commissioner because the former is not a revisionary/appellate authority viz -a -viz the latter. It is also a fact that if the transfer had not taken place the earlier Additional Commissioner would have issued a speaking order allowing the release of the goods on fine of Rs. 5.5 Lakhs and penalty of Rs. 2.5 Lakhs (subsequently reduced to Rs. 1,71,247/ -) on enhance value after cutting the beed wire. It needs to be appreciated that the speaking order is more required by the appellants and the Revenue in any case is not aggrieved by the order of the earlier Additional Commissioner. The appellants are not agitating against the order passed by the earlier Additional Commissioner; (and they also possibly cannot because the said order was passed after the appellants waived the show cause notice, thereby, in effect, agreeing to not insist on following the principles of Natural Justice); they are only agitating against the aforesaid two additional conditionalities ordered by subsequent Additional Commissioner. We have already held that the subsequent Additional Commissioner had no authority to sit in judgment over the decision of the earlier Additional Commissioner as he was neither the revisionary authority nor the appellate authority for the latter. Thus the additional conditionalities have no force in law inasmuch as they in effect modify the order of earlier Additional Commissioner for doing which the latter Additional Commissioner had no authority. We make it clear that we are not expressing any opinion regarding the legal requirement for import license or clearance from Ministry of Environment and Forest.

(3.)IN view of the foregoing, we allow the appeal only to the limited extent of setting aside the additional conditionalities mentioned in Para 1 above.
(Dictated and pronounced in the Court)


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