Page 178 - ELT_15th July 2020_Vol 373_Part 2

160 EXCISE LAW TIMES [ Vol. 373

identified the said employees and had retrieved the gold hidden in the seat
which was concealed in 2 deftly concealed packets inside the backrest cushion of
said seat on disembarkment of all the passengers. Said package came to be seized
under panchanama and proceedings which were initiated resulted in imposing
of penalty of Rs. 11,28,934/- under Section 112(a) of the Customs Act, 1962 and
seized goods came to be confiscated under Section 111 of the Act on the ground
that they were smuggled gold vide order dated 4-8-2017.
3. Being aggrieved by the said order an appeal came to be filed before
Commissioner of Customs (Appeals) contesting levy of penalty. After affording
an opportunity appellate authority by its order dated 28-5-2018 dismissed the
appeal by upholding the order-in-original passed by the Additional Commis-
sioner of Customs. Further appeal to the CESTAT did not yield any fruitful result
to the appellant and second appeal also came to be dismissed. Hence, this appeal
contending inter alia that based on the statements of a co-employee penalty has
been levied and statement recorded under the Customs Act could not have been
relied upon for passing the impugned order-in-original and entire procedure
adopted by the original authority is erroneous. Contending question of law for-
mulated in the appeal memorandum would arise for consideration, appellant has
prayed for appeal being allowed.
4. Sri. Dakshina Murthy, Learned Counsel appearing for appellant by
reiterating aforesaid grounds urged in the appeal would also hasten to add that
order-in-original has been passed by authority, which is not competent to pass
such order under Section 120A of the Customs Act, 1962 and as such said order
which has since received the confirmation by the appellate authority, is liable to
be set aside by formulating the substantial question of law as formulated in ap-
peal memorandum and answering the same in favour of appellant.
5. Per contra, Sri. K.V. Aravind, Learned Counsel appearing for re-
spondent would support the impugned orders and would contend that order-in-
original which has been passed by the Additional Commissioner is just and
proper and he being the competent authority to pass such an order, no infirmity
can be found in the impugned order and he would contend there is no question
of law involved in this appeal for being formulated, adjudicated and answered.
Hence, he prays for dismissal of the appeal.
6. Having heard the Learned Advocates appearing for parties, we no-
tice that issue relating to the authority which has passed the order-in-original
dated 4-8-2017, is Additional Commissioner of Customs. Section 122 of the Cus-
toms Act, 1962 under which said order has been passed reads :
“122. Adjudication of confiscation and penalties. - In every case under
this Chapter in which anything is liable to confiscation or any person is lia-
ble to a penalty, such confiscation or penalty may be adjudged. -
(a) without limit, by a Principal Commissioner of Customs or
Commissioner of Customs or a Joint Commissioner of Cus-
toms;
(b) where the value of the goods liable to confiscation does not
exceed five lakh rupees, by an Assistant Commissioner of Cus-
toms or Deputy Commissioner of Customs;
(c) where the value of the goods liable to confiscation does not
exceed fifty thousand rupees, by a Gazetted Officer of Cus-
toms lower in rank than an Assistant Commissioner of
Customs.”
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