Page 226 - ELT_3rd_1st May 2020_Vol 372_Part

448 EXCISE LAW TIMES [ Vol. 372

(1) shall, in addition, be liable to any duty and charges payable in respect of
such goods.”
The Tribunal has considered the scope of application of Section 125
which provides imposition of penalty in lieu of confiscation and has held in para
10 to 14 reproduced hereinbelow :-
10. A plain reading of the above section shows that it does not confer up-
on the Authority passing the Order any power to impose any conditions
while allowing redemption of goods.
11. The scope of Section 125 of the Act is limited by the words in which it
is framed and it is not open to the adjudicating authority or the Tribunal
(who are creatures of the statute) to stretch, modify or restrict the scope of
this Section; they are bound by it. Hon’ble Supreme Court and High Courts
can and do examine the validity of the laws and subordinate legislations
and pass judgments annulling or modifying them by neither the officers
nor the Tribunal, as creations of the statute cannot do so. This position has
been explained clearly by the Hon’ble Supreme Court in UOI v. Kirloskar
Pneumatics Company - 1996 (84) E.L.T. 401 (S.C.) in which it was held as un-
der :
‘‘According to these sub-sections, a claim for refund or an order of
refund can be made only in accordance with the provisions of Sec-
tion 27 which inter alia includes the period of limitation mentioned
therein. Mr. Hidayatullah submitted that the period of limitation
prescribed by Section 27 does not apply either to a suit filed by the
importer or to a writ petition filed by him and that in such cases the
period of limitation would be three years. Learned Counsel refers to
certain decisions of this Court to that effect. We shall assume for the
purposes of this appeal that it is so, notwithstanding the fact that
the said question is now pending before a larger Constitution Bench
of nine Judges along with the issue relating to unjust enrichment.
Yet the question is whether it is permissible for the High Court to
direct the authorities under the Act to act contrary to the aforesaid
statutory provision. We do not think it is, even while acting under
Article 226 of the Constitution. The power conferred by Article
226/227 is designed to effectuate the law, to enforce the Rule of law
and to ensure that the several authorities and organs of the State
Act in accordance with law. It cannot be invoked for directing the
authorities to act contrary to law. In particular, the Customs author-
ities, who are the creatures of the Customs Act, cannot be directed
to ignore or act contrary to Section 27, whether before or after
amendment. May be the High Court or a Civil Court is not bound
by the said provisions but the authorities under the Act are. Nor can
there be any question of the High Court clothing the authorities
with its power under Article 226 or the power of a Civil Court. No
such delegation or conferment can ever be conceived. We are, there-
fore, of the opinion that the direction contained in Clause (3) of the
impugned order is unsustainable in law.”
12. We also find that not only Section 125 but no Section of the Customs
Act, 1962 gives any officer the power to compel anyone to import or export
or re-export. This Section also does not give the Adjudicating Authority the
right to give a conditional redemption saying “you can redeem only if you

EXCISE LAW TIMES  1st May 2020  226