TMI Blog2018 (11) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... nd allow the appeal of party to the extent of such modification. - APPEAL Nos. C/87266,87268/2018 - A/87587-87588/2018 - Dated:- 24-9-2018 - Dr. D.M. Misra, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) Shri B.R. Tripathi, Advocate, for appellant Shri Manoj Kumar, Assistant Commissioner (AR), for respondent ORDER Per: Sanjiv Srivastava These appeals are directed against the order of Commissioner (Appeals) up holding the order of Joint Commissioner of Customs Appr. Group-I, JNCH. By the said two orders similarly worded Joint Commissioner has held as follows: 15 I confiscate the goods having declared assessable value of ₹ 8,38,950/- imported vide above mentioned Bill of Entry No 5633431 dated 19.03.2018 under provisions of section 111(d) of the Customs Act, 1962. However I give the importer an option to redeem the goods for re-export only on payment of Redemption Fine of ₹ 1,00,000/- (Rs One Lakhs only) under section 125 of the Customs Act, 1962. I order the fine imposed should be paid within in a period of one hundered and twenty five days from the date of option given, such option shall become void, unless an appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts) Mumbai [2007 (215) ELT 522 (T)] ii. Oetiker India Pvt Ltd. Versus Commissioner of Customs (Import) Nhava Sheva [2016 (340) ELT 226 (TMum)]; 3.3 Arguing for revenue learned AR Supported the order of lower authorities and submitted that option to re-export the goods on payment of redemption fine has been allowed by the adjudicating authority. In case the goods are not re-exported they will automatically stand absolutely confiscated. Since the goods are found to be prohibited goods adjudicating authority has rightly confiscated the goods and subject to the re-export and redemption fine under section 125. He relied upon the decisions of Apex Court as follows in his support i. Collector of Customs Bombay Vs Elephanta Oil and Industries Ltd. [2003 (152) ELT 257 (SC)] ii. Alchemist Foods Ltd Vs Additional Commissioner of Customs [2017 (356) ELT 257 (Del)] 4.1 The issue is under a very narrow compass, and the question of law which needs to be considered is Whether adjudicating authority was correct in imposing the condition of re-export while allowing the goods to be redeemed on payment of redemption fine. 4.2 For better appreciation of law, it is necessary to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After going through the provisions of Section 125 of the Customs Act, we find that provisions of this section do not specifically provide that an option may be given to redeem the goods for re-export. It empowers an adjudicating authority in case of goods the import or export of which is prohibited under Customs Act or under any law in force, to grant an option to pay in lieu of confiscation such fine as the said authority thinks fit. The provisions of this section equally apply to the goods to be exported as well as imported goods. Where the goods which have been tendered for export are ordered to be confiscated and an option to redeem the goods on payment of fine, it would follow that option is for the export of the goods. This is no doubt different from reexport. Re-export is a facility permitting export of goods which have already been permitted to be imported. Except in cases where import is prohibited by any law, those goods which have been imported may be permitted to be exported. The formal procedure of filing a shipping bill and observing other formalities relating to export of goods would have to be followed. There is no prohibition on the adjudicating authority from pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been seized to pay a fine in lieu of confiscation. In an adjudication proceeding as in the present case these are the provisions which would come into play. If the owner gets the goods released after payment of redemption fine, he may either clear it for home consumption or re-export the same subject to the relevant rules. A permission granted for re-export on the basis of a request made by the owner of the goods is outside the purview of the adjudication proceedings, as mentioned above. We, therefore, answer the questions referred in the affirmative and hold that it is open to the adjudicating authority to impose redemption fine as well as penalty even when permission is granted for re-exporting the goods. The reference is answered as above. 4.5 Similarly in case of Kothari Filaments [2002 (144) E.L.T. 80 (Tri. - Kolkata)], on difference of opinion, majority view was expressed as follows: 21. It is relevant to note that while the Learned Member (judicial) holds that no redemption fine is imposable when re-export of goods is allowed, learned Member (Technical) does not hold otherwise. On the other hand, by interpreting the order of the Commissioner the Member (Technic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Handbook of Import and Export Procedures 1985-88 is irrelevant to the facts of the case. 8. We, therefore, modify the order of the Collector in the following manner : The goods are confiscated, but the appellants are entitled to redeem the same on payment of ₹ 5000/-. Accordingly, we dispose of the appeal. In the above mentioned two cases challenge was against the imposition of redemption fine while permitting reexport and in both the cases the Tribunal modified the orders retaining that portion of the order directing confiscation and imposing redemption fine. Direction for re-export was vacated. The position of law as explained in the above decision is that once the redemption fine is paid and the confiscated goods are redeemed the importer becomes the full owner of the goods and it is open to him to deal with the goods as he desires either to use it in domestic consumption or to export the same subject to relevant rules. In the light of the above, there is justification in the view taken by the Learned Member (Technical) that the last sentence in paragraph 50(i) of the order may be treated as an observation with regard to the legal position. This is more ..... X X X X Extracts X X X X X X X X Extracts X X X X
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