ORDER
V.P. Gulati, Vice President
1. The stay petitions have been filed by the Revenue for staying the order of the Collector of Central Excise (Appeals) under which he has reduced the redemption fine and the amount of penalty which have been levied in terms of the impugned orders before him. In the stay petitions the Revenue has urged that the learned Collector (Appeals) should not have reduced the redemption fine to the level of 78% on the value of the goods as against 290% levied in one case and 282% levied in the other case and also the penalty should not have been reduced to the level of Rs. 50,000/- in each case. The prayer of stay has been sought till the final disposal of the appeal. The stay petitions were posted for hearing on 2-5-1997 and were adjourned at the request of the respondents.
2. Today when the stay applications were taken up we are informed that the Department has already released the goods in the case of Ketan Enterprises collecting redemption fine and the penalty as levied in terms of the impugned order and also on execution of bank guarantee of 50% of the C.I.F value and personal bond for balance amount. We are also informed in the case of O.K. Agencies similar application is under consideration of the Commissioner and similar order is likely to be passed by him.
3. The learned SDR has pleaded that this release has been ordered in terms of the decision in the Conference which was taken on 30th September, 1995 in the Conference held in Calcutta and the substance of which has been communicated from the Office of the Commissioner of Central Excise, Trichy to the Assistant Collector at Tuticorin and wherein it has been stated that the Conference has decided that in cases where on appeal the relief is given the Commissioner (Appeal)’s order should be implemented subject to collection of 50% bank guarantee from the importer if he is a trader and the balance amount on execution of personal bond and the directions were given to him as to the bank guarantee has to be taken so that redemption fine is secured. Likewise the same thing was indicated in regard to penalty. The directions as contained in this letter is reproduced below :
As a result, we may collect:
(a) Redemption fine as ordered by Commissioner (Appeals).
(b) 30% of the rest of the redemption fine (as ordered by Additional Commissioner) as Bank Guarantee.
(c) 70% of the rest of redemption fine (as ordered by Additional Commissioner) on personal bond and Bank Surety/Security.
(d) Penalty as ordered by the Commissioner (Appeals).
(e) 30% of the rest of the penalty as ordered by the Additional Commissioner with Bank Guarantee.
(f) 70% of the rest of the personal penalty as ordered by the Additional
Commissioner in personal bond and Bank Surety/Security.
4. We observe that the Department had approached for stay of the order of the learned lower authority. At the time when the stay application was filed these instructions were available and despite that the Department felt that the stay of the operation of the order of the Collector (Appeals) was called for in the facts and circumstances of the case and the Tribunal therefore listed the stay petition for hearing when the matter was thus pending, the goods have been released following the administrative instructions as above. We observe that in a situation like this where there is an order of the Collector (Appeals) giving relief to the appellants the order as such is required to be implemented or otherwise a direction has to be sought from the Tribunal in this regard. The Commissioner of Central Excise cannot in modification of the judicial order passed in terms of the provisions of the Customs Act, interfere with that order himself and impose conditions for release of the goods on his own. The orders statutorily passed once it is impugned before the Tribunal have to be dealt with in terms of the orders that may be passed by the Tribunal in regard to that. This order would be passed by the Tribunal on an application being filed by the Department by way of stay petition and for release of the goods in case the goods are not being released by the authorities by the importer. In the present case there was no miscellaneous application pending from the importer seeking release of the goods subject to the terms that may be fixed by the Tribunal and the only application that was before the Tribunal was the stay petition filed by the learned Commissioner. The Commissioner on his own therefore could not have interfered with the order impugned before us. Any order passed in this regard would be in the nature of extra judicial order and in our view it is not a proper thing to do. In case the Department wanted to release the goods, suitable directions could have been obtained from the Tribunal for setting the term for release of the goods either pending disposal of the stay petition or the appeal itself. This having not been done we observe that the proceedings so far as the stay of the matter is concerned have been rendered by the action of the Department as infractuous. In the circumstances therefore we hold that since the Department on its own has chosen to release the goods the stay petition as it serves no useful purpose. We therefore dismiss the stay petition as filed by the Department. So far as the early hearing is concerned, since it has been urged that the issue is of recurring nature we allow the prayer of the Department in this regard and list the case for hearing on 14-7-1997.