TMI Blog2017 (3) TMI 1348X X X X Extracts X X X X X X X X Extracts X X X X ..... rity or the expertise of officials who constituted this particular Review Committee. In the most polite terms; it can only be described as a matter of shame and it is expected the Central Board of Excise & Customs take steps to ensure that the incompetence and ineptitude is reflected in their records and that other officers are impressed upon the need to guard against such demonstrated deceit. Confiscation is a proceeding that follows the determination of goods having offended specific provisions of the Customs Act, 1962. With such confiscation, and consequent redemption, the offending goods lose that pejorative qualification and are regularised. When goods are subject to confiscation for misdeclaration of value, the offence of misdeclar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessable value and confirmed differential duty of ₹ 20,35,258 on M/s Lilly Industries Ltd and ₹ 13,73,367/- against M/s Lilly Leasefin Limited and directed that the other goods imported by M/s Lilly Industries Ltd be cleared on payment of duty of ₹ 6,40,003/-. The goods that were available were confiscated under section 111 and allowed to be redeemed on payment of fine of ₹ 10,00,000/- and one 'ADSL access concentrator' and eight ADSL modules', being not available, was not confiscated. Penalties were imposed on the two importers and Shri Nitin B Patel under section 112 of the Customs Act, 1962. 2. It is the contention of Revenue that the goods that were not confiscated should have been and redemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instance, except for those that were unavailable, goods have been confiscated and penalty imposed on importers as well as on Shri Nitin B Patel. Even if the goods that were not available were to be confiscated, it would not matter a whit to the quantum of penalty that has been imposed in the impugned order, nor is there any contention in the appeal that the quantum of penalty under section 112 should be enhanced. Obviously, Revenue is concerned that the redemption fine that, if collected from importers of goods that are not available, would swell the coffers of the State. 6. The potential for collection of redemption fine would arise only upon exercise of that option by the person who imported the goods. The importer would exercise that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced and it would be overreach to deem the desires of the reviewing authority to be reflected in the extracts incorporated in the appeal without ascertaining the circumstances of those disputes. With the legal position amply clear, and the practical considerations having thus been enunciated, the findings of the Tribunal cannot be adopted merely because the minimal extract is thus interpreted by the reviewing authority. 7. The decision of the Hon'ble High Court does not advance the case of Revenue as it holds that non-availability of goods is no bar to liability for confiscation which is the finding that the offending goods are liable to confiscation. Likewise, the decision of the Hon'ble Supreme Court has held that the confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollusion or any wilful mis-statement or suppression of facts, the person who is liable to pay the duty or interest, as the case may be, GS determined under sub-section (2) of section 28 shall also be liable to pay a penalty equal to the duty or interest so determined: Provided that where such duty or interest, as the case may be, as determined under sub-section (2) of section 28, and the interest payable thereon under section 28AB, is paid within thirty clays from the date of the communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent of the duty or interest, as the case may be, so determined: xxxxxx Provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeding that follows the determination of goods having offended specific provisions of the Customs Act, 1962. With such confiscation, and consequent redemption, the offending goods lose that pejorative qualification and are regularised. When goods are subject to confiscation for misdeclaration of value, the offence of misdeclaration and its attendant tentacles get erased. Payment of duty is, thereby, on goods that are no longer offending and, hence, cannot be imposed with another penalty under section 114A. Adjudicating authorities should be mindful of this position and choose the penalty that they wish to impose. With the mandatory nature of section 114A in the circumstances enumerated therein, the imposition of penalty under section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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