TMI Blog2017 (7) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... imposable - the matter needs to be remanded to the Adjudicating Authority to ascertain the quantum of fine - appeal allowed by way of remand. - Central Excise Appeal No.1087 of 2011-SM - A/11327/2017 - Dated:- 3-7-2017 - Dr. D. M. Misra, Member (Judicial) Dr. J. Nagori, A.R. for the Appellant-Revenue None for the respondent ORDER Per: Dr. D.M. Misra None present for the Respondents despite notice. Heard the Ld. AR for the Revenue. 2. This is an appeal filed by the Revenue against OIO 06/MP/DAMAN/2011 dated 30.3.2011 passed by the Commissioner, Central Excise, Customs Service Tax, Daman. 3. Briefly stated the facts of the case are that the respondents, an 100% EOU, was alleged to have violated the conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .03.2017. 6. I find that the limited question of law involved in the Revenue's appeal for determination is: whether goods exported in violation of the condition of B-17 Bond could be liable for confiscation and fine or otherwise. In my view the issue is no more res integra as has been considered by the Hon ble Gujarat High Court in the case of CCE C Vs. Kaay Bee Tax Spin Ltd (Supra) . Their Lordships observed as follows: 5. Heard learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted and it is not in dispute that as such, the Adjudicating Authority has confirmed the demand of Central Excise and Customs duty, etc. on the raw materials, interest thereon and impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether Central Excise duty or the lawful charge which shall be demandable on the goods obtained by us without payment of duty from the domestic tariff area and transported from the place or procurement to our premises for use in special Industrial purpose and shall also pay after final assessment by the proper officer/Assistant Commissioner of Central Excise or such other delegated authority, as the case may be which were assessed on provisional basis under Rule 9B of the Central Excise Rules, 1944 all dues within 10 days of the date of demand thereof being made in writing by such officers. 12. We, the obligor, shall if the articles so manufactured are and are allowed to be sold in India in such quality and subject to such other lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verting the goods illicitly into the open market and the raw materials which were procured by forgoing Customs duty have not been used for the purpose for which they were imported, and therefore, the goods were liable to be confiscated. 5.3 Section 125 of the Customs Act, 1962 provides that whenever confiscation of any goods is authorized by the Act, the Officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under the Customs Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods, an option to pay in lieu of confiscation such fine, as the said Officer thinks fit. 5.4 As observed hereinabove, on the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds which were illicitly diverted in the open market, which were permitted to be warehoused on certain terms and conditions; including without making payment of Customs duty. 5.6 Now, so far as reliance placed upon a decision of Bombay High Court rendered in case of Finesse Creation Inc. [Supra] and the subsequent decision of the said High Court in the case of National Leather Cloth Mfg. Company [Supra] are concerned, on facts, the same shall not be applicable to the facts of the case on hand, since in the matters before the Bombay High Court, there was no bond/legal undertaking executed. The submission made on behalf of the respondent-Unit that unless and until the goods are first seized, there is no question of confiscation and cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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