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2017 (7) TMI 669 - AT - Customs100% EOU - N/N. 1/95-C.E. dated 4.1.95 - respondents are alleged to have procured huge quantity of raw materials, namely, polyester fabrics yarn from some of the 100% EOUs under CT-3 certificate, but instead of utilising the same in the manufacture of goods and exporting the same, they exported cheaper varieties of polyester fabrics yarn from local market, and the raw materials procured duty free were diverted into the Domestic Market - whether charge of confiscation and penalty sustainable, when the goods are not available for confiscation? - Held that: - principle of law laid down by the Hon’ble Gujarat High Court in the case of Commissioner of Central Excise Customs and Service Tax Versus M/s Sanjari Twisters [2017 (4) TMI 219 - CESTAT AHMEDABAD], taken into consideration, where it was held that as the goods were not available for confiscation, as the goods were already diverted/permitted to be warehoused without payment of duty, on furnishing the bond and the undertaking and thereafter, the respondent-Unit clandestinely and illicitly diverted the goods to the open market, the goods which otherwise were liable to be confiscated, in lieu of confiscation, redemption fine was imposable - the matter needs to be remanded to the Adjudicating Authority to ascertain the quantum of fine - impugned order to the extent of not directing confiscation and imposition of fine is set aside - appeal allowed by way of remand.
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