Commr. of Cus. (Export) vs Dishman Pharmaceuticals and Chemicals Ltd.

Heard both sides. After perusing the order of the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai dated 3-2-2012 which is impugned in this appeal, we are of the opinion that the appeal deserves to be admitted and taken up for hearing on the following substantial questions of law:-

(a) Whether the Tribunal was justified in disposing of the appeal itself at the stage of consideration of an application for stay and waiver of redemption fine and penalty amount?

(b) Whether the appeal could have been disposed of without adverting to the rival contentions, considering the entire record and by assigning reasons only in one paragraph?

(c) Whether the reasons assigned by the Tribunal can be said to be complete, satisfactory and cogent in the given facts and circumstances?

The two pages order in which the entire appeal has been disposed of at the stage of waiver of pre-deposit and penalty contains five paragraphs. Till Paragraph 3, the facts have been referred, in Paragraph 4 there is observation that both sides have been heard and their contentions considered, so also the record is perused. In Paragraph 5, the Tribunal observed as under:-

(5) It is observed by the adjudicating authority that mis-declaration of goods in the shipping bills was not a willful attempt by the appellants, although there is negligence on the part of the appellants/exporter, therefore, no fine and penalty are imposable. However, for the negligence of the appellants, a penalty of Rs. 50,000/- is to be imposed on the appellant/exporter. Accordingly, we waive the redemption fine and reduce the penalty on the appellant/exporter namely M/s. Dishman Pharmaceuticals and Chemicals Ltd. to Rs. 50,000/- and also waive the penalty on the CHA M/s. M.D. Ruparel & Sons. Appeals as well as stay applications are disposed of in the above manner.

We have perused memo of appeal before us with all its annexures. We find that the Tribunal should not have expressed any final opinion and arrived at any conclusion. If it was inclined to direct waiver of pre-deposit of fine and penalty amount, then, the Tribunal should have held that its tentative and prima facie view is that this is not a case of willful act by the respondent but only a negligence. The Tribunal should not have, without referring to the entire record, concluded that the case is not of mis-declaration of goods in the shipping bills willfully but by sheer negligence. Such finding cannot be recorded unless the versions of both sides have been considered in detail. The reasons have to be assigned for upholding one of the version. In doing that the Tribunal must refers to rival contentions, the documents produced by both sides with there contents. This entire exercise is not a mere formality. The Tribunal should be aware of the basic and fundamental principle that justice should not only be done but seen to be done. In the present case, the Revenue has not agreed for final disposal of the appeal and the Tribunal did not bother whether both the parties are agreeable to the course which it is going to adopt. The Tribunal took up the appeal for final disposal on its own and has disposed of the same in a manner, which is most unsatisfactory and contrary to law. For the reasons afore stated, we allow the appeal and set aside the order dated 3-2-2012 passed by the Tribunal. We restore Appeal Nos. C/860/2010 and C/17/2011 on the file of the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai. The appeal shall be disposed of afresh on merits and in accordance with law without being influenced by any of the observations in the impugned order. However, we clarify that the order passed by the Tribunal shall be treated as one disposing of the application for stay/waiver of pre-deposit of redemption fine and penalty. The order, therefore, shall be treated as interim order. The same shall continue to operate during pendency of the appeal. However, this will be without prejudice to the rights and contentions of both sides. It is clarified that this order in no manner affects the merits of the controversy. All contentions in relation thereto of both sides are kept open.