Per Shri T.P. Nambiar :

These are 7 appeals filed by the appellants against the 7 orders passed by the Commissioner (Appeals). The details are set out in Annexure-A to the order. The above said details are furnished by the learned Advocate, Shri A.K. Jayaraj, which was verified by the learned SDR, and the same reflects the correct position.

2. It is now seen that as far as items 1, 2 & 7 of the Annexure are concerned, the lower authority had fixed a redemption fine of about 25%, whereas, in the other cases, the adjudicating authority had fixed a redemption fine of about 50%. In the impugned order, the Commissioner (Appeals) had enhanced the redemption fine to 100% of the CIF value.

3. The learned Advocate, Shri A.K. Jayaraj, appearing for the appellants, in the first instance, contended before us that the goods had already been released in favour of the appellants, in terms of the orders passed by the Additional Commissioner. Therefore, he pointed out that when the goods are not available, the Commissioner (Appeals) in the impugned order would not have enhanced the above redemption fine. It was his contention that in order to enhance the redemption fine, the goods should have been in the possession of the department. He pointed out that once the goods are released and are not available for confiscation under Section 125, the redemption fine cannot be enhanced.

4. We observe that this very same point was heard by us on 10.11.97 and after hearing both the sides, in para 1 and 2 of our Note, we have observed as under:

"1. The Ld. Advocate Shri A.K. Jayaraj had raised the legal plea that the Ld. Commissioner (Appeals) could not enhance the redemption fine in as much as the goods had already been released based on the order of the Ld. original authority against which the department had taken-up the matter under Section 128A of the Customs Act before the Ld. Commissioner (Appeals).

2. We heard the arguments of both the sides and we are of the view that the Ld. Commissioner (Appeals) had the necessary authority to enhance redemption fine under Section 128A of the Customs Act as otherwise this section would become redundant.

5. We had also dispensed with the pre-deposit of penalty in question, as the appeals were not tested on merits. In para 3 and 4 of our Note, we have held as under:

"3. The stay petitions have been posted for dispensation of the pre-deposit of the penalties levied in terms of the impugned orders. The Ld. advocate for the appellants has pleaded that he is not contesting the appeals on merits and his only plea is that for reduction of the redemption fine from the enhanced amount as fixed by the Ld. lower appellate authority.

4. In view of what has been pleaded, it would be expedient for both the sides and in the interest of justice by dispensing with the pre-deposit, the appeals are heard finally."

6. The matter was, thereafter, adjourned to enable the department to make enquiries with respect to the price for the Black Cumin Seeds vis-a-vis White Cumin Seeds. In para 6 of our Note, we have observed as under :

"6. The issue therefore revolves round as to whether the Ld. Lower authority was right in adopting the market price as done by him. It would be therefore desirable that the department makes enquiries as to whether the Black Cumin Seeds commands a higher price compared to the White Cumin Seeds or Vice versa. The market price in respect of Black Cumin Seeds should be ascertained by the departmental authorities and the Ld. Commissioner concerned should report the result of the market enquiries. If the market price is not available at Tuticorin, the place of importation, the necessary enquiries should be made at the nearest place where the market place available as was done in the earlier case. What we have to ascertain is whether the White Cumin Seeds commands a higher price compared to Black Cumin Seeds and if so what is the differential price in this regard."

This order is recorded by us in Appeal No. C/731/97, which i