One cannot beat another with a stick, which does not exist
NO, we do not think this is a proverb, but it may as well become one!
The facts leading to the Revenue appeal are that the respondent imported used copier machine with standard accessories valued at Rs.13,98,210/-. The import of second hand capital goods including refurbished/re-conditioned spares was allowed only against a license issued in terms of para 2.17 of the Foreign Trade Policy 2004-09. The respondent could not produce any such license. Therefore proceedings were initiated and the goods were confiscated. However, an option was given to the respondent to redeem the goods on payment of redemption fine of Rs.10,00,000/- and a penalty of Rs.2,00,000/- was imposed under section 112(a) of the Customs Act, 1962.
The Commissioner (Appeals) reduced the redemption fine to Rs.2,80,000/- and the penalty to Rs.70,000/- on the ground that the margin of profit was not determined by the Revenue.
Before the CESTAT, the Revenue submitted its grievance that "if that was so", the Commissioner (Appeals) could have himself determined the margin of profit, if need be, or could have remanded back the case. [Had he remanded the case, the Revenue would still have come in appeal saying that the power of remand has been withdrawn by the FA, 2001 and cited the MIL India Ltd. case 2007-TIOL-30-SC-CX.]
Be that as it may, the Bench held -
"…However, I find that the Department has also not made any efforts to ascertain the margin of profit before/after filing the appeal. One cannot beat another with a stick which does not exist. Thus, I do not find any reason to interfere with the impugned order. The learned Commissioner (Appeals)'s order is upheld and the Revenue's appeal is dismissed."
Quite possibly, the Revenue will take the case to the higher level to trace the stick!