TMI Blog2017 (4) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... the open market, the goods which otherwise were liable to be confiscated, in lieu of confiscation, redemption fine was imposable - the matter needs to be remanded to the Adjudicating Authority to ascertain the quantum of fine - appeal allowed by way of remand. - Appeal No. E/198/2007 - ORDER No. A/10732 / 2017 - Dated:- 29-3-2017 - Dr D.M. Misra, Hon'ble Member (Judicial) And Shri Raju, Hon'ble Member (Technical) For Applicant : Shri J Nagori, Authorised Representative For Respondent : None ORDER Per Dr D. M. Misra None present for the Respondents. Heard Ld AR for the Revenue. 2. This is an appeal filed by the Revenue against OIO-09-KRB-MP-2006 dt 27/03/2006 dt Commissioner of Central Excise, Customs and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared under Bond. It is his contention that the Appellant an 100% EOU unit had executed a Bond with the jurisdictional Dy. Commissioner while obtaining warehouse license and license to manufacture in Bond under Sec. 58 and 65 of Customs Act,1962. Therefore, the Ld. Commissioner should have enforced the conditions of Bond and directed confiscation of the goods obtained duty free for manufacture of goods for export instead diverted to the domestic market without payment of duty. He submits that the issue no more res integra and covered by the decision of Hon ble High Court of Gujarat in the case of CCE C vs Kaay Bee Tax Spin Ltd 2017.TIOL.199.HC.AHM.CX 7. We find that the limited question of law involved in the Revenue s appeal is, in abs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulfill the export obligations and conditions stipulated in Customs/Central Excise Notifications, as amended, under which the specified goods have been imported/sources, as well as the Import-Export Policy for April, 1997 to 2002, as amended from time to time and to pay on demand an amount equal to the Customs and Central Excise Duties leviable on the goods as are not proved to the satisfaction of Assistant/Deputy Commissioner of Customs/Central Excise to have been used in the manufacture of articles for export and any penalty imposed under the Customs Act, 1962 of the Central Excise Act, 1944 and rules or regulations made thereunder, as the case may be. 11. We, the obligors, shall discharge all dues whether Central Excise duty or the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e undertaking temporarily, without payment of duty, for testing repairs, reconditioning, processing or display, etc. 5.1 In the said form, the respondent-Unit had also declared that the said written bond shall continue to be in force, notwithstanding the transfer of goods to any other person or removal of goods from one warehouse to another. The said bond was also backed by an undertaking. On execution of such bond and the conditions mentioned in the bond, the respondent-Unit was permitted to warehouse the goods without payment of any duty. 5.2 It is an admitted position that thereafter, the respondent-Unit clandestinely removed the goods and thereby committed breach of condition by diverting the goods illicitly into the open mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorized, Section 125 of the Customs Act shall be applicable. However, as the goods were not available for confiscation at the time of adjudication, as the same were already released on bond and/or permitted to be warehoused without payment of duty on furnishing the bond and undertaking, redemption of fine in lieu of confiscation was imposable. 5.5 Under the circumstances, considering the decision of Apex Court rendered in case of Weston Components Limited [Supra] and the decision of Karnataka High Court in the case of Shilpa Trading Company [Supra], the Tribunal ought to have held that the Adjudicating Authority ought to have imposed redemption fine in lieu of confiscation of the goods which were illicitly diverted in the open market, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the open market, and the purpose for which the goods were permitted to be imported without payment of duty is frustrated, in lieu of such goods, redemption fine is imposable. 6. For the reasons stated above, as the goods were not available for confiscation, as the goods were already diverted/permitted to be warehoused without payment of duty, on furnishing the bond and the undertaking and thereafter, the respondent-Unit clandestinely and illicitly diverted the goods to the open market, the goods which otherwise were liable to be confiscated, in lieu of confiscation, redemption fine was imposable. 8. In view of the above judgment, the matter needs to be remanded to the Adjudicating Authority to ascertain the quantum of fine. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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