The main legal point established is that the Tribunal's power is limited to the decision or order appealed against, and it should not place the appellant in a worse position than the order under challenge. The principle of 'no reformatio in peius' should be considered in appellate decisions.

T.S. SIVAGNANAM, J.

1. This appeal by the assesee is directed against the final order passed by the Customs, Exercise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai, (in short, "the Tribunal") dated 29.04.2016 in Final Order No.40678/2016.

2. Mr.A.Thiyagarajan, learned Senior Counsel appearing for the appellant, submitted that the Court may consider the substantial questions of law No.(i) and (iii), though, the appeals have been admitted on 3 substantial questions of law vide order dated 02.12.2016. Thus, recording the concession given by the learned Senior Counsel for the appellant, this appeal is admitted on the following two substantial questions of law :

"(i) Whether on the facts and in the circumstances of the case, the Tribunal was right in suo motu resorting the order of the Additional Commissioner of Customs, Adjudicating Authority, when there was no appeal filed by the Department under Section 129A or cross appeal under Section 129A(4) of Customs Act is correct in law and

(iii) Whether on the facts and in circumstances of the case, the Tribunal was right in holding that the Department has discharged the burden of proof is correct in law ?"

3. The appellant was issued a show cause notice dated 16.10.1992 proposing to absolutely confiscate 22 numbers of gold bars weighing about 2563 gms. valued at Rs. 7,35,247.81ps. under Section 111(d)(l) and (m) of the Customs Act, 1962 (in short "the Act") read with Section 67 of the Foreign Exchange Regulation Act, 1975, as to why the materials used for concealment should not be confiscated and as to why penalty should not be imposed under Section 111(e) of the Act.

4. The appellant filed his reply dated 03.02.1993. The show cause notice was adjudicated by the then Additional Collector of Customs, Madras, and an Order-in-Original dated 11.01.1994 was passed. By the said order, the Additional Collector of Customs confirmed the proposal in the show cause notice and directed absolute confiscation of the 22 number of gold biscuits and imposed penalty of Rs. 10,000/- on the appellant. Aggrieved by the same, the appellant preferred an appeal to the Commissioner of Customs (Appeals) [in short, "the Commissioner (Appeals)"]. The first appellate authority vide Order-in-Appeal dated 29.04.2009 modified the order passed by the original authority by allowing redemption of gold, subject to payment of fine of Rs. 15,00,000/-, by exercising the power under Section 125 of the Act. Aggrieved by the amount of redemption of fine imposed, the appellant filed an appeal before the Tribunal. The Tribunal vide the impugned order, while dismissing the appeal filed by the appellant, restored the Order-in-Original dated 11.01.1994, wherein, absolute confiscation was ordered. The correctness of this order is put to challenge in this appeal.

5. Heard Mr.A.Thiyagarajan learned Senior Counsel for Mr.S.Ramesh Kumar, learned counsel appearing for the appellant and Mrs.R.Hemalatha, learned Senior Standing Counsel for the respondent.

6. The issue, which falls for consideration, is as to whether the appellant can be put in worse position in an appeal filed by him, when admittedly, the Department did not file an appeal against the order of the Commissioner (Appeals) exercising discretion under Section 125 of the Act and directing return of the gold, on payment of redemption fine of Rs. 15,00,000/- ?

7. Section 129A of the Act deals with appeals to Appellate Tribunal. In terms of Clause (b) of Sub-section (1) of Section 129A, an appeal is maintainable to the Tribunal against the order passed by the Commissioner (Appeals) under Section 128A of the Act. The appeal before the Tribunal in the instant case was that of the appellant. Sub- section (2) of Section 129A gives power to the Department to prefer an appeal. The said provision states that if the Committee of Commissioners of Customs is of the opinion that the order passed by the Commissioner (Appeals) is not legal a proper, they can direct an appeal to