TMI Blog2015 (8) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... C. Dharmadhikari and N.W. Sambre, JJ. Shri Pradeep S. Jetly, for the Appellant. Shri Prakash Shah with Jas Sanghavi i/by PDS Legal, for the Respondent. ORDER This appeal by the revenue challenges the order passed by the Customs, Excise and Service Tax, Appellate Tribunal, West Zonal Bench at Mumbai dated 23rd January, 2013. 2. The appeal of the assessee has been partly allowed by the Tribunal by this order. The revenue has raised a question of law and Mr. Jetly termed it as substantial only because in paragraph 8 of the Tribunal s order, it is held as under :- 8. As rightly argued by the learned Counsel for the appellants, as the goods have not been seized and are not available, redemption fine is not imposable. With these terms, the appeal is partly allowed by dropping the redemption fine against the appellants. 3. Mr. Jetly submits that this finding in the Tribunal s order is contrary to law. Mr. Jetly has elaborated his submission by pointing out that the show cause notice came to be issued because the assessee imported various consignments/goods as per the annexure to the show cause notice on presenting import licences mentioned in the annexure und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se notice specifically alleges as to how the wrongful act would result in contravention of Section 111(o) of the Customs Act and that the goods were liable to confiscation. 5. In these circumstances, the Tribunal could not have rendered a finding of fact that as the goods have not been seized and are not available, redemption fine is not imposable. Mr. Jetly would submit that there is a bond and which is implicit in terms of Notification No. 203/92. In that regard our attention has been invited to clauses (i) and (ii) of this Notification, copy of which is at page 74 of the paper book. Therefore, Mr. Jetly would submit that once a bond or a legal undertaking has been contemplated in terms of the Notification itself and at the time of the clearance of the imported materials, then, this is not a case where the Tribunal could have held that the goods have not been seized and are not available. The goods may have been utilized in manufacture of export goods or export product. The goods may not be available but in terms of the Notification, itself, if a bond is contemplated that bond can be enforced and executed. In enforcing and executing it, it is possible and permissible for the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reaching a reasonable belief that they are liable for confiscation. It is their confiscation and a provisional relief from the consequences under Section 110A against either a bond or security that is then contemplated in law. Then, it should be held that even if the goods are not available for confiscation, still a bond having been executed or a security given against their release from seizure that the provisions of Section 111(o) would come into force. In that event the redemption fine could have been insisted upon and if that was not paid the goods vest in the Government on confiscation and in terms of Section 126. Mr. Shah therefore, submits that the appeal be dismissed. 10. With the assistance of the learned Counsel appearing for parties, we have perused the appeal paper book and with all annexures. We have also perused the relevant statutory provisions and the decisions brought to our notice and the notification copy of which is at page 74 of the appeal paper book. 11. The show cause notice alleges violation of Condition No. (v)(a) of the Notification No. 203/92. The show cause notice alleges that no input stage credit was admissible but in violation of this condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section. However, as the goods are not available for confiscation. I impose a redemption fine of ₹ 13,39,909/- (Rupees thirteen lakhs thirty nine thousand nine hundred and nine only) on the goods imported vide the two Bs/E mentioned above, in lieu of confiscation under Section 125(1) of Customs Act, 1962. 14. The assessee filed an appeal against such an order of the Additional Commissioner of Customs (Export) dated 3rd February, 2009. The Tribunal upheld this order save and except the operative clause 2 reproduced above. 15. We are of the view that the Tribunal s order has been rendered in the backdrop of the peculiar facts and circumstances. The show cause notice itself alleges that the goods which have been imported into India by the assessee are not available for confiscation. Yet, the adjudicating authority proceeded to impose a redemption fine. That seems to have been confirmed by the appellate authority as well. That is how the Tribunal concluded that if the goods are not available for confiscation, the redemption fine could not have been imposed. Now, in doing that the Tribunal has not referred to any provision of law nor it has referred to any judgment of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods is one of the criteria which has been evolved in the reported decision of this Court in the case of Commissioner of Customs (Import), Mumbai v. Finesse Creation Inc. - 2009 (248) E.L.T. 122. There, what was found by the Division Bench was that the imported goods were confiscated and a redemption fine of ₹ 13,45,000/- under Section 125 of the Customs Act, 1962 was imposed in lieu of confiscation. The assessee in that case appealed to the CESTAT against the order and raised several contentions. One of which was that the imposition of redemption fine was impermissible. Before the Tribunal the assessee relied upon a judgment of the Punjab and Haryana High Court in the case of Commissioner of Customs, Amritsar v. Raja Impex (P) Ltd., 2008 (229) E.L.T. 185. The revenue relied on the Hon ble Supreme Court s decision in the case of M/s. Weston Components Ltd. v. Commissioner - 2000 (115) E.L.T. 278. Distinguishing Weston s judgment (supra), the Division Bench held that the goods were released on the application of the assessee before the Supreme Court and on execution of a bond. Therefore, when the import was not found to be valid or there was any other irregularity which would e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or perversity which would warrant our interference in further appellate jurisdiction. Once the export obligation is discharged, then, it is the later part of Section 125(1) of the Customs Act, 1962 which will be applicable. In this case, the goods being of the later category but they were not available once the export obligation is discharged by the assessee. While clarifying that the Tribunal found that the custody of the goods has not been seized nor the possession taken and they were not available for confiscation, then, the question of redemption fine which is essentially a option to pay in lieu of confiscation would not arise. The term redemption appears to have been coined by parties over a passage of time. Section 125 speaks of option to pay a fine in lieu of confiscation. In the light of the seizure being not possible in this case, that this finding has been rendered by the Tribunal, we do not find any larger question or wider controversy arising from such a factual finding. In such circumstances, we do not think that the appeal raises a substantial question of law and particularly as framed by the Revenue. 18. We would keep the issue as raised by Mr. Jetly and sough ..... 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