KETAN ENTERPRISES Vs. UNION OF INDIA

JUDGEMENT

(1.) THE writ petition No.19082/1997 is filed contending that the petitioner has imported poppy seeds of Pakistan origin from Karachi under two bills of entry at a declared value of Rs.6,59,640/- and Rs.3,77,177/-, the 4th respondent namely the Adjudicating Authority held that the poppy seeds are not allowed to be imported as they were consumer items but however allowed the goods to be redeemed on payment of redemption fine at 290%. Aggrieved against the said order, the petitioner filed an appeal before the 3rd respondent namely the Commissioner of Customs (Appeals). THE 3rd respondent after conducting an enquiry has reduced the redemption fine to 75% and imposed a penalty of Rs.1,50,000/-. THE redemption fine worked out to Rs.4,94,730/- and Rs.2,82,882/- in respect of the bills of entry. As against the said order of the 3rd respondent, the department filed an appeal before the second respondent Tribunal namely THE Customs Excise Gold (Control) Appellate Tribunal, South Zone, Madras. THE Tribunal by its order dated 28.11.97 has fixed the redemption fine at the rate of 155% and confirmed the penalty imposed by the 3rd respondent.

(2.) LEARNED counsel for the petitioner contended that the Adjudicating Authority namely the 4th respondent has passed the order based on an enquiry conducted with reference to the available records. When the appeal was filed as against the order of the 4th respondent, the 3rd respondent by order dated 17.1.1997has found that the market value of the poppy seeds arrived at by the Adjudicating Authority was not fixed as per the records available before them and accordingly fixed the market value. LEARNED counsel further contended that the 3rd respondent has relied upon the copies of the 'Economic Times' and 'Financial Express' for the month of October & November and found that the market value fixed by the 4th respondent was based on the said publication as Rs.75000/- per metric tone was incorrect as the said market value is only at Delhi and that the finding of the value of Rs. 40,000/- to 50,000 per metric tone is only at Calcutta. LEARNED counsel further contended that the 3rd respondent has also taken note of the demurrage charges which works out to 6.75 lakhs for six containers with reference to the letters of Customs House Agent and the market value of the poppy seeds and reduced the redemption fine at the rate of 75% and imposed a penalty of Rs.1,50,00/-. LEARNED counsel further contended that when a further appeal is filed before the 2nd respondent Tribunal/ the Appellate Authority has chosen to conduct independent market enquiry as if the said Tribunal is acting as an Adjudicating Authority and had chosen to pass an impugned order.

(3.) IT is also seen the procedure adopted by the Tribunal is contrary to the principles laid down by the Apex Court in its decision rendered in 1997(95) ELT 8(S.C.) Commissioner of Customs, Calcutta Vs. Hanuman Trading Corporation which reads as follows: