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2016 (12) TMI 639 - AT - CustomsConfiscation - DEPB benefit - mis-declaration of description of goods - Held that: - We find that the claim on DEPB appellant has given up the claim hence, we upheld the denial of DEPB claimed by the appellant. Now the issue to be decided whether adjudicating authority is correct in confiscating the goods, imposing penalty and fine. We find that it is admitted fact that the goods were never seized or not released provisionally on the execution of bond and bank guarantee therefore in case when the goods were not seized and released provisionally and the goods are not available then confiscation of such goods is not correct which has been settled in various judgments, in particular, the judgment in case of Shiv Kripa Ispat Pvt Ltd Vs. Commissioner of C. Ex. & Cus, Nashik[2009 (1) TMI 124 - CESTAT MUMBAI] supports the present case. In view of the settled legal position on this issue, we find that adjudicating authority was not suppose to confiscate the goods. As regard the redemption fine, redemption fine is imposed only for redeeming the goods which was under confiscation. The goods are not available, redeeming such goods is out of question, therefore redemption fine of ₹ 7,50,000/- is not sustainable. As regard the penalty of ₹ 5 lacs imposed on the appellant, we find that firstly confiscation is not sustainable. As regard the mis-declaration of the goods the Adjudicating authority itself arrived at the value of ₹ 5 Lacs in respect of export of goods and not FOB value of ₹ 27,89,568/- therefore considering overall facts and correct FOB value of the exports goods, we are of the view that penalty of ₹ 5 lacs is much on higher side which deserves to be reduced. We therefore reduce the penalty from ₹ 5 lakhs to ₹ 1 lakh. Impugned order stands modified to the above extent. Appeal is partly allowed.
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