ORDER
V.P. Gulati, Vice President
1. By this application, the department has sought for stay of the order of the ld. Lower Appellate Authority under which he has reduced the redemption in respect of the goods valued at Rs. 8,18,521.20 which was fixed at Rs. 19,97,190/- i.e. 244% to the level of 75%. The departmental authorities in pursuance of the order of the ld. Lower Appellate Authority, have released the goods after taking a personal bond for the difference in the redemption fine between the one fixed by the ld. Original Authority and the ld. Lower Appellate Authority and the Bank Guarantee for 75% of CIF Value.
2. We had come across similar cases thereafter the appellate order had been passed and the appeal had been filed before us wherein we had pointed out when the department had filed or contemplated filing of the appeal in that event only two courses are open before the authority i.e. either to release the goods in terms of the appellate authority’s order or to seek necessary direction in this regard from the Tribunal if they wanted to release the goods on some terms.
3. In the case of CCE v. Ketan Enterprises, reported in 1997 (95) E.L.T. 138 (Tribunal), in this regard, we have observed at para 4 as under :-
“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.”
4. In the present case, again the order of the ld. Commissioner (Appeals) has been interfered and the terms as set out are not squarely as per the grounds made out in the appeal memorandum where the quantum of redemption fine which has been asked to be fixed by the authorities at 244%. However, since the goods have been allowed to release and the matter has been taken out our hands. At this stage, the prayer, for stay of the order looses its meaning. We, therefore, dismiss the prayer for stay of the ld. Lower Appellate Authority.
5. However, we make it clear that the order of the ld. Lower Appellate Authority will not serve as a precedent for the purpose of release of other goods, pending decision of the Tribunal.
6. The authorities have to decide the matter on the facts of each case taking into consideration the market value of the goods. We also like to observe that in a case like this when the goods are released by the authorities pending decision in terms of the appeal, samples should have been drawn for ascertaining the position as to market value of the goods for the purpose of fixing the redemption fine.
7. We had asked the ld. JDR when the matter had come up before us last as to whether the samples were drawn. He replied that the same had not been done and the only information he has got is that the then Commissioner ordered the release of the goods at the request of the party. We only like to observe that this response is not satisfactory. What we are interested to know is when the department is in appeal and they seek the enhancement of the redemption fine, the only effective basis to go by is to get the actual market enquiry done in respect of the goods which have been imported. In fact it would be expected that when the matter is before the authorities below, they would conduct market enquiries before fixing the redemption fine. There is no explanation as to why this was not done. In any case, necessary precautions should have been taken to draw the samples for ascertaining the position in this regard.
8. With these observations, we dismiss the prayer for stay of the order of the ld. Lower Appellate Authority.