ORDER
S.L. Peeran, Member (J)
1. This appeal arises from Order-in-Original No. 2/2001, dated 17-7-2001 which has been decided on de novo consideration on the directions of CEGAT. The Tribunal in their Final Order No. 1425/2000, dated 11-10-2000 had observed that appellants had waived the issue of show cause notice under Section 124 of the Customs Act which was applicable only for confiscation and penalty and not for demanding duty under Section 128 of the Customs Act. Hence the matter was remanded back for issue of SCN to arrive at the value of undeclared 20 spindles which were found in the consignment over and above the declaration filed in the Bill of Entry No. 3/96 for determination of value in terms of Section 14 of the Customs Valuation Rules and thereafter demand duty and confiscate under Customs Act.
2. The department followed the procedure in issue of show cause notice and details of excess spindles and its value and its determination was assessed and furnished in the show cause notice. After obtaining the relevant details from the appellants, the matter was adjudicated after granting due hearing and impugned order has come to be passed by which the Commissioner has ordered for confiscation of undeclared excess portion of machinery consisting of 20 spindles valued at 10,83,884/- under the provisions of Section 111 of the Customs Act, besides imposing a fine of Rs. 3.50 lakhs in lieu of confiscation under Section 125 of Customs Act.
3. As the appellants paid the above duty, fine and penalty at the clearance of the goods in terms of earlier order-in-original 26-2-96, the same was appropriated. However, the Commissioner enhanced the penalty from Rs. 2 lakhs which had been imposed in terms of earlier adjudication to Rs. 3.50 lakhs besides confirming customs duty of Rs. 4,20,006/- under the provisions of Customs Act. Appellants had already paid Rs. 9,70,006/- vide T.R. Challan No. 132/1, dated 16-2-1996 towards penalty, fine and duty which was adjusted and balance amount of penalty of Rs. 1.50 lakhs has been directed to be recovered from the appellants.
4. The Appellants are aggrieved with the said order of enhancement of penalty amount and are challenging the same by this appeal. At the time of hearing the stay, the waiver was granted by Stay Order No. 33/2002, dated 23-1-2002 and as the matter lied in a short compass which was directed to be listed for final hearing for 21-2-2002.
5. We have heard ld. Counsel Shri T.S. Balasubramaniam and Shri A. Jayachandran, ld. DR.
6. The point made before us is that the order is infructuous for the reason that the Commissioner cannot enhance the penalty and put the assessee in a disadvantage position from the position in which they were when the issue was adjudicated on the first occasion in Order-in-original No. VIII/10/1/96-Cus., dated 26-2-96 wherein he had imposed a penalty of only Rs. 2 lakhs. It is submitted that the Commissioner has not signed the order besides no reasons have been given as to why there has to be imposition of penalty and the various reasons given by the appellants for non-imposition of penalty have not been discussed and therefore order is not a speaking order and the Commissioner has not followed the direction given by the CEGAT.
7. On a careful consideration of this submission and after hearing the ld. DR, we are of the considered opinion that the matter has to go back to the Commissioner as it is very clear that the Commissioner has not applied his mind while imposing the penalty. The assessee cannot be put to a more disadvantageous position than what they were in the earlier adjudication order when the penalty imposed was only Rs. 2 lakhs. The Commissioner has not indicated as to why the appellants are required to pay penalty and as to why penalty is required to be enhanced. The Commissioner ought to have given a speaking order in terms of CEGAT’s direction in de novo proceedings. Failure to do so has resulted in violation of principles of natural justice and therefore we are of the considered opinion that the Commissioner should look into the matter afresh with an open mind and give a finding as to why penalty is required to be imposed and should take into consideration all the extenuating circumstances to impose penalty. In this connection, the Commissioner should examine the case-law on this aspect of the matter for which the Counsel should give full assistance by citing the rulings of the Apex Court, other Courts and Tribunals as to how a penalty is required to be imposed and on under what circumstances. We notice that the Commissioner has not issued the order duly signed by him but the orders have been issued as attested by the Superintendent. We do not know as to whether the original order in the case file contains the signed order or not. The order which is produced, attested by the Superintendent shows only “Sd/-” above the name of the Commissioner. There is no signature therein. Therefore, we are required to set aside this order for de novo consideration with a specific direction that the Commissioner shall decide the case with an open mind as directed supra and re-determine the issue only with regard to imposition of penalty and this is the only issue which is challenged. Thus the appeal is allowed by way of remand.