TMI Blog2016 (9) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... material lying in Port, the petitioner should be directed to pay the differential duty relating to the total consignment of about 84365 metric tons or whether the goods can be released upon payment of the proportionate differential duty representing the duty payable for the goods, of which release is now sought? - Held that: - though the object of the proceedings under Sections 28 and 125 of the Act are different from each other, they overlap. This is the reason why the Supreme Court held in Commissioner of Customs (Import), Mumbai Vs. Jagdish Cancer & Research Centre [2001 (8) TMI 113 - SUPREME COURT OF INDIA)] that the order for payment of duty under Section 125(2) would be an integral part of the proceedings relating to confiscation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Lakshmi Kumaran For The Respondent : Mr. Swaroop Oorilla ORDER: (Per VRS,J) The petitioner, whose imported goods are detained at Gangavaram Port, has come up with the above writ petition seeking a Mandamus to direct the 1st respondent to release the goods upon payment of redemption fine of ₹ 2,50,00,000/-, together with proportionate duty amount of ₹ 1,74,36,865/- along with interest of ₹ 61,13,890/-. 2. Heard Mr. Lakshmi Kumaran, learned counsel for the petitioner, and Mr. Swaroop Oorilla, learned standing counsel for the respondents. 3. The petitioner imported two consignments of Coke Breeze, under two Bills of Entry dated 21.12.2013 and 30.01.2014 respectively. The goods landed up at Gangavaram P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is extracted as follows: I deny the BCD exemption under Sl.No.125 of CN 12/2012 Cus. Dated 17.3.2012 in the Bills of Entry No.4147311 dt.21.12.2013 and 4500504 dt.30.01.2014 as the exemption is available only for Metallurgical Coke and not for the imported Coke Breeze. I confirm and demand the differential duty amounting to ₹ 10,22,68,148/- (Rupees ten crores twenty two lakhs sixty eight thousand one hundred and forty eight only) against the two Bills of Entry Nos.4147311 dt.21.12.2013 and 4500504 dt.30.01.2014 under Section 28(8) of the Customs Act, 1962 and order recovery of the same along with the applicable interest under Section 28AA of the Customs Act, 1962. I hold that the goods totally valued ₹ 77,81,03,468.86 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest. Therefore, the petitioner has come up with the present writ petition. 9. The only question that arises for consideration in this writ petition is as to whether for the release of 14801.52 metric tons of material lying in Port, the petitioner should be directed to pay the differential duty relating to the total consignment of about 84365 metric tons or whether the goods can be released upon payment of the proportionate differential duty representing the duty payable for the goods, of which release is now sought. 10. The main contention of the learned counsel for the petitioner is that under Section 125(2) of the Act, where any fine in lieu of confiscation is imposed under Sub-Section (1), the owner of such goods will be liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stand taken in the order in original passed by the 1st respondent is to the effect that all the goods, including those already cleared, were liable for confiscation under Section 111(m), and that since a major portion of the goods had already been cleared, it was not possible physically to confiscate or detain them. Since such a deeming fiction is created, even in respect of the goods already released, the expression such goods appearing in Section 125(2), has to be construed as referring to all the goods that were liable for confiscation, but which escaped confiscation for whatever reasons. Otherwise, the appeal filed by the petitioner before the CESTAT as against the order in original, will itself turn out to be an exercise confined ..... X X X X Extracts X X X X X X X X Extracts X X X X
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