TMI Blog2017 (5) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... 017 - Dated:- 19-5-2017 - Shri S. S. Garg, Judicial Member Mr. Pradhyumna, Advocate For the Appellant Dr. J. Harish, AR For the Respondent ORDER Per: S. S. Garg The present appeal is directed against the impugned order dated 16.9.2008 passed by the Commissioner of Customs whereby the Commissioner has imposed redemption fine of ₹ 5,00,000/- under Section 125 of the Customs Act, and also imposed penalty of ₹ 50,000/- on the appellant under Section 112(a) of the Customs Act, 1962. 2. Briefly the facts of the present case are that appellant is engaged in the manufacture of lead and lead alloys ingots falling under Chapter 7804 1910 of the First Schedule to the Central Excise Tariff Act. The goods manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or loose form vide two Bills of Entry bearing Nos.153556 and 153542 both dated 5.9.2007 in contravention of the import regulation. Upon finalization of the investigation, show-cause notice was issued to the appellant proposing to confiscate the metallic scrap imported vide the two Bills of Entry as per Section 111(d) / Section 111 (m) of Customs Act, 1962 and impose penalty under Section 112(a) of the said Act. After following the due process of law, the Commissioner of Customs, Bangalore vide the impugned order held that as pre-import regulation, the appellant was required to produce a pre-shipment certificate regarding the consignment and he has further held that while scrap in unshredded form could be imported through ICD Chennai and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate but however, import and clearances of metallic scrap in unshredded, compressed or loose was permitted only through designated ports accompanied by a pre-shipment certificate and where such certificate was not available, the import consignment would be subject to 100% examination. He further submitted that in the present case, the appellant had imported metallic scrap in shredded form vide two Bills of Entry which is evident from the pre-shipment certificate which states that the goods imported are clearly mentioned as metal strippings and further, the certificate issued clearly states that the shipment does not contain any types of arms, mines, shells, cartridges, radio contaminated material or any explosive material. Learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dition or omission of such an act. 5. On the other hand, the learned AR reiterated the findings of the impugned order. 6. After considering the submissions of both the sides and perusal of the material on record, I find that the impugned order holding the goods as liable to confiscation without the goods being actually seized is not sustainable in law. In view of the various decisions cited supra. Further, I find that in this case there was no seizure of goods because the goods were not available and it had already been consumed. In all the decisions cited supra, it has been held that confiscation cannot be ordered in the absence of seizure of goods and therefore, the imposition of redemption fine of ₹ 5,00,000/- is not sustaina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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