ORDER
Smt. Archana Wadhwa
1. After dispensing with the condition of predeposit of penalty of Rs. 4,00,000/- imposed upon the appellant under the provisions of Section 114 of the Customs Act, 1962, I take up the appeal itself inasmuch as the impugned order has been passed ex-parte.
2. The contention of Shri K.K. Bhattacharjee, ld. Consultant appearing for the appellant, is that vide the impugned order, Commissioner of Customs has confiscated Ephedrine Hydrochloride under the provisions of Section 113 (d) of the Customs Act. He submits that the seizure of the said goods was not made under the Customs Act and the same were seized under the provisions of N.D.P.S. Act, 1985. He draws my attention to photo copy of inventory of goods seized/detained clearly mentioning that the seizure has been made under Section 42 of the N.D.P.S. Act, 1985. The wordings already printed in the said seizure memo as under section 110 of the Customs Act, 1962 have been scrubbed. Similarly he draws my attention to seizure memo wherein the wordings under Rule 201 of Central Excise Rules 1944 and Section 105 of the Customs Act, 1962 have been cut and ‘under Section 42 of N.D.P.S. Act, 1985’ has been written. As such, he submits that inasmuch as the seizure was not effected under the Customs Act, the confiscation of the goods and imposition of penalty upon the appellant under the provisions of Customs Act, is neither justified nor warranted. For the above proposition, he relies on a number of decision of the Tribunal to that effect.
3. I have heard Shri A.K. Chattopadhyay, ld. JDR for the Revenue.
4. After going through the show-cause notice, I find that para 1.4 is to the effect that the seizure of the said goods was effected under Section 110 of the Customs Act, 1962. Inasmuch as both the positions as shown in the seizure memo and as reflected in the show-cause notice are contradictory and the original papers have not been produced before me, I set aside the impugned order and remand the matter to the Commissioner for looking into the said facts. I also note that no reply was filed before the Commissioner and the personal hearing given by the adjudicating authority was not attended. As such, the above submission which is now made before me for the first time, was not made before the Commissioner. For this reason, the remand of the matter is required. In that view of the foregoing, I set aside the impugned order and remand the matter to the Commissioner. The appellant shall appear before him on the date of hearing so fixed by the adjudicating authority. Stay Petition also gets disposed of.
Dictated and pronounced in the open Court.