COMMISSIONER OF CUSTOMS Vs. SIR MD. YASEEN

JUDGEMENT

(1.) THE revenue has come up in this appeal being aggrieved by the order of the Customs, Excise & service Tax Appellate Tribunal/south Zonal bench, Bangalore, in Final Order No. 965 dt.21.6.2005.

(2.) THE facts leading to this case are as hereunder: It is the case off the revenue that an attempt was made by the respondent to clear an imported car vide Bill of Entry No. 02438 dt. 8.9.99 by manipulating certain documents to avail certain benefits. The revenue issued a show cause notice on 15.11.99. The car was also confiscated and imposed a penalty of Rs. one lakh vide order in original No. 6/2000 dt 4.2.2000. Being aggrieved by the order of confiscation and levy of penalty, the respondent -assessee filed an appeal before the commissioner of Appeals, who directed the respondent to deposit a sum of Rs. 50,000/ - as a condition to hear the appeal as required under Section 129A of the Customs Act and he also passed an order to release the car on payment of Rs. one lakh and he reduced the penalty to Rs. 50,000/ -. Thereafter, the assessee addressed letters dt.7.2.2002, 20.3.2002 and 27.6.2002 to release the car on the ground that he is willing to pay the duty payable on the vehicle. Later on, he came to know that his car was sold by the revenue during the pendency of this appeal before the commissioner of appeals. In the circumstances, he approached this Court by filing a writ Petition on the ground that his requests to release the car has not been considered by the revenue. This Hon'ble Court in W.P. No. 44082/2002 dt.22.6.2004 directed the revenue to consider the representation of the petitioner within a period of three months from the date of receipt of the order. On the ground that his grievance has not been considered, the assessee filed an appeal before the Tribunal stating that the case of the assessee has not been considered. The Tribunal considering the various decision of the court held that the assessee is entitled for refund of the value as valued in the Mahazar at the time of seizure along with the interest at 12% p.a. As the Department is not in a position to deliver the vehicle and on the ground that the vehicle sold illegally without bringing it to the notice of the appellate Commissioner wheat the appeal was pending. This order is challenged in this appeal by raising the following substantial questions of law:

(3.) THE main contention of the revenue before us is that the filing of Writ Petition itself is had in law and that the assessee had not challenged the auction of the car by the Department by filing an appeal before the Tribunal. Therefore, the relief granted to the assessee by this Court in the Writ Petition was had in law and similarly the order of the CESTAT also has to be set aside as without jurisdiction.