TMI Blog2016 (9) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... . - Appeal No. C/1094/04 - Order No. A/89388/16/CB - Dated:- 24-8-2016 - Mr.Ramesh Nair, Member (Judicial) And Mr. Raju, Member (Technical) Shri.K.M. Mondal, Special Counsel, for appellant None for respondent ORDER Per Raju 1. The appellant, M/s.Jewel Tech India Pvt. Ltd. is engaged in the manufacture of jewellery in Santacruz Electronics Export Processing Zone (SEEPZ). The appellants were importing gold, diamonds, etc. duty free under Notification No.177/94-CUS dated 21/10/1994 for manufacture of jewellery for export out of India. The said notification permitted a certain percentage of wastages and loss of inputs in the process of manufacture. The appellants were required to maintain proper accounts of import, consumption and utilization of the imported goods and submit periodical reports to the Assistant Collector of Customs. On a detailed inspection of their unit carried out by the Customs, certain shortages of gold were detected. A total shortages of gold of 13122.17 grams of 995 purity was found during the stock taking and it was valued at ₹ 54,76,406/-. A show-cause notice was issued to the appellant seeking to recover Customs duty and to impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition (v) of Notification No. 80/95-Cus. by the appellant attracted Section 111(o) of the Customs Act and, consequently, the goods imported by him were liable to confiscation. That the goods were diverted after duty-free clearance, in stead of being used in the manufacture of products to be exported in discharge of export obligation under DEEC Scheme, is not in dispute. Hence there can be no resistance to the Commissioner s orders holding the goods liable to confiscation. The goods were, no doubt, not physically available for confiscation as they had been cleared duty-free and diverted long back. However, it is not in dispute that the clearance of the goods at Customs was allowed against bond and bank guarantee. That being so, the non-availability of the goods would not stand in the way of the adjudicating authority imposing redemption fine under Section 125 of the Act. This view is supported by the Hon bleSupreme Court s judgment in Weston Components Ltd. v. Commissioner, 2000 (115) E.L.T. 278 (S.C.), wherein the goods imported by the assessee were released on execution of bond and, on the basis of this fact, it was held by the apex court that the Customs authorities were entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 15,000/-. Having regard to the value of the goods (Rs. 77,676/-), we are of the view that a fine of ₹ 10,000/- would be reasonable in this case. Accordingly, we reduce the quantum of fine to ₹ 10,000/-. 3. He also relied on the decision of CCE Raigad Vs. Indo Daein Leather 2011 (274) ELT 552 (T). In the said case, the goods were not consumed but ware available with the Court Receiver and therefore, the facts of the case are significantly different from the facts of the case. 4. None appeared for the respondents. 5. We have considered the submissions made by the learned Special Counsel. We find that the issue has been examined by the Larger Bench of the Tribunal in the case of Bhagyanagar Metals Ltd. Vs. CCE, Hyderabad-II 2016 (333) ELT 395 (Tri-LB) has observed as follows: 46. Learned Senior Counsel for the appellants contested confiscation of impugned goods and imposition of redemption fine on the same. He submitted that there was no seizure at all or ever, either of the phones or the CD-ROMS imported by the appellants. Appellants had not executed any bond for provisional release of any goods in terms of Section 110A of the Customs Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases which have been cleared by the concerned authorities subject to furnishing undertaking/bond etc. However, in the present case, admittedly, the goods were cleared by the respondent-authorities without execution of any bond/undertaking by the assessee. Thus, in view of the fact and circumstances of the case, we find no error in the impugned orders. No substantial question of law arises for our determination in the present appeal and the same is hereby dismissed . 47. Further, learned Counsel pleaded that the fine is payable, if at all, only on redemption of goods. Here there is neither a seizure nor provisional release under bond and, hence, the question of payment of redemption fine either to release the goods or in terms of the bond does not arise. We find that there can be no redemption fine in the absence of any seizure or provisional release of such seized goods under proper bond. In the present case in the absence of such events, redemption fine imposed is not sustainable. 5.1 In the case of SB T International Ltd. 2016 (335) ELT 83 (T) an identical issue of shortages found in the premises of a unit located in SEEPZ was examined. Para 7 of the said order read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bond, the person from whose possession/control the goods had been seized, is bound to produce the goods whenever called upon to do so. We are supported in this view from the judgment of Hon blePunjab Haryana High Court in case of Commissioner of Customs, Amritsar v. M/s. Raja Impex (P) Ltd. reported in [2008-TIOL-280-HC-P H-CUS = 2008 (229) E.L.T. 185 (P H)] wherein the Hon bleHigh Court held that when the goods are not available for confiscation for the reason that the same had been released unconditionally, the redemption fine under Section 125 could not be imposed, that Hon bleSupreme Court s judgment in case of Weston Electronic Components v. Commissioner of Customs, New Delhi reported in 2000 (115) E.L.T. 278 (S.C.) is applicable only in those cases where the goods had been released against a bond executed by the person from whose possession/control the goods had been seized and that when the goods have been released against a bond, the position is as if the goods were available. Same view has been taken by the Tribunal in the case of G.M. Exports v. Commissioner of Customs, Bangalore reported in 2008 (226) E.L.T. 571 (Tri.-Bang.). In this case, the goods held to be liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods could not have been confiscated. The decision of the Larger Bench of the Tribunal relied upon by the learned Commissioner is also applicable since in this case also there is no bond with a security is available. The B-17 Bond is a general purpose bond undertaking to fulfil the conditions of notification and other requirements and does not help the Revenue to confiscate the goods not available and impose the redemption fine in lieu of confiscation. Further, the confiscation always presumes availability of goods and presumption normally is that goods have been seized and thereafter the proceedings would culminate into confiscation or release. Confiscation would mean that seized goods become the property of the Government and the party to whom it is ordered to be released on payment of fine, will have to pay fine and redeem the goods. When the goods have been diverted and not released on execution of bond with conditions, the question of confiscation of the same does not arise since goods have already become someone else s property. Under these circumstances, I find no merits in the appeal filed by the Revenue and accordingly, reject the same. In view of above the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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