2023 (12) TMI 244 - AT - Central Excise

Confiscation of cash seized by the investigating officer from the house of the partner of the Appellant firm - cash amount seized from the premises of the partner of the Appellant firm was against the sale proceeds of clandestinely removed goods - HELD THAT - The Learned Commissioner (Appeal) has referred to para 4.2.3 wherein the Adjudicating Authority has clearly found that the cash of Rs. 50, 73, 710/- seized from the residence of Shri Mahesh Chaodhary partner of the Appellant is sale proceeds of the excisable goods which has been sold by the noticee without licit documents and without payment of duty - it is found that after giving this clear finding by the Adjudicating Authority he should have passed an order for confiscation of the cash further no order on proposal of confiscation made in the show caused notice was passed by the Adjudicating Authority. At the same time the cash which was seized was adjudged against the duty interest and 15% penalty. Therefore there is an apparent error in the order of the Adjudicating Authority accordingly the Learned Commissioner (Appeal) instead of straightway confiscating seized cash should have remanded the matter to the Adjudicating Authority. The Appellant also raised the issue on the provision of section 11 AC (1) (d) that after payment of duty interest and 15% penalty entire proceeding of the show cause notice should have been concluded and no confiscation could have been ordered. In this regard it is found that since Adjudicating Authority had given clear finding that the cash seized by the investigating officer is liable to confiscation in such case without passing any order on the confiscation of the cash the adjustment of the same towards the duty interest and penalty is also incorrect. Thus the matter relates to confiscation of seized cash needs to be reconsidered by the Adjudicating Authority - appeal allowed by way of remand.

Summary

Issues involved:
The issue in this case revolves around the confiscation of cash seized from the partner of the Appellant firm, and whether it is liable for confiscation under Section 121 of the Customs Act, 1962 read with Section 12 of the Central Excise Act, 1944.

Details of the judgment:

Issue 1: Confiscation of seized cash
The appeal was directed against the order in appeal passed by the Commissioner (Appeal), where the appeal filed by the Revenue was allowed, holding the seized cash of Rs. 50,73,110/- liable for confiscation. The Appellant contended that since they had paid duty, interest, and penalty, the proceedings stood concluded. They argued that there was no evidence linking the seized cash to illicit goods, and therefore it should not be confiscated. The Adjudicating Authority had not passed an order on the confiscation of the cash, leading to an error in the decision. The Tribunal found lack of clarity and apparent error in the Adjudication order and remanded the matter for a fresh order.

Issue 2: Applicability of Section 34 of the Act
The Appellant also argued that under Section 34 of the Act, they should have been given the option to pay a fine in lieu of confiscation. They contended that the confiscated cash could have been redeemed by paying a fine. However, since the Adjudicating Authority did not pass an order on confiscation, this provision was not applied. The Tribunal observed that the matter needed to be reconsidered by the Adjudicating Authority for a proper decision.

Conclusion:
The Tribunal set aside the impugned order and remanded the matter to the Adjudicating Authority for passing a fresh order. The appeal was allowed by way of remand to ensure a proper decision regarding the confiscation of the seized cash.

*(Citation: 2023 (12) TMI 244 - CESTAT AHMEDABAD)*