COMMISSIONER OF CENTRAL EXCISE Vs. LALCHAND WADHWANI

JUDGEMENT

(1.) In this appeal, the Revenue has made challenge to the impugned Order vide which the Commissioner (Appeals) has reversed the Order in original of the adjudicating authority who ordered the confiscation of the foreign origin goods (Mobile Phones with A/c, D/c Adapters) under Section 111 read with Section 119 of the Act. The Commissioner (Appeals) on the face of it, has acted contrary to the law resulting in mis -carriage of justice. When the respondents failed to deposit the penalty, as per the Order dated 6 -2 -2003, the Commissioner (Appeals) had no option but to dismiss the appeal under Section 129E. He could not hear the appeal on merits. He had no power to review his own order. Therefore, the impugned Order passed by him is liable to be quashed on this very ground alone.

(2.) Even on merits, the impugned Order cannot be sustained. The foreign origin goods detailed above, were recovered from the respondent and he himself admitted of having smuggled the goods into India. The Commissioner (Appeals) has not referred to his confessional statement and reversed the Order in original of the adjudicating authority on the simple ground that the goods were not notified goods. He has lost sight of the fact that the smuggling of non -notified goods is not permissible under the law. In a case of recovery of notified goods, the possessor of the goods has to prove his lawful acquisition, wherein in a non -notified goods, the burden is on the Revenue to prove that the goods were of foreign origin and had been smuggled into India. Without referring to the evidence and material in detail, which the Revenue has brought on record, the Commissioner (Appeals) has reversed the Order in original. His Order is criptic, and based on no evidence.

(3.) In the light of submissions made above, the impugned Order is set aside and the matter is sent back to the Commissioner (Appeals) for deciding the case afresh after granting an opportunity of hearing to the appellant. The appeal is disposed of accordingly.