TMI Blog2017 (7) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Central Excise Customs and Service Tax Versus M/s Sanjari Twisters [2017 (4) TMI 219 - CESTAT AHMEDABAD], taken into consideration, where it was held that 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 - the matter needs to be remanded to the Adjudicating Authority to ascertain the quantum of fine - impugned order to the extent of not directing confiscation and imposition of fine is set a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g fine observing that the goods exported are not available for confiscation. Aggrieved by the said order, the Revenue is in appeal. 4. Ld. A.R. Mrs. Nitina Nagori for the Revenue submits that the respondents, an 100% EOU admittedly violated the condition of Notification No.1/95-C.E. dated 4.1.95, Exim Policy 2002-2007, therefore, the ld. Commissioner ought to have directed confiscation of the goods as proposed in the show cause notice in view of principle of law laid down by the Hon ble Gujarat High Court in the case of C.C.E. C Vs. Kaay Bee Tax Spin Ltd. - 2017 - TIOL - 199 - HC - AHM - CX and followed by the Division Bench of this Tribunal in the case of CCE, ST, Surat-II Vs. Sanjari Twisters vide Order No.A/10732/2017 dt. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant conditions are reproduced as under :- 10. We, the obligor, shall fulfill 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid or the articles manufactured or package therefrom to be taken outside the 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 there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sold in the open market in India. Thus, once the confiscation of such goods was authorized, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s found that the goods are not available for confiscation as the same were illicitly diverted 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 . 5. In view of the above judgment, which has been followed by this Tribunal in CCE, ST,Surat-II Vs. Sanjari Twister's case(supra) , the matter needs to be remanded to the Adjudicating Authority to ascertain the quantum of fine. Consequently, the impugned order to the extent of not directing confiscation and imposition of fine is set aside and the matter is remanded to the Adjudicating Authority for determination of quantum of fine imposable under the circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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