TMI Blog2019 (5) TMI 1362X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, no duty can be demanded on raw material used in the manufacture of such finished goods. Confiscation of POY - HELD THAT:- Since the conditions of the notification dated 03.06.1997 has not been contravened. Material available in the case record proves the fact that the POY were used for the intended purpose and there was no contravention of post import condition. Even otherwise, the imported POY was not available for confiscation at the time of initiation of show cause proceedings, and as such - no redemption fine can be imposed in the absence of goods being available for confiscation. There is no reason to uphold the impugned order as no duty can be demanded on the inputs as no violation has been brought out on record vis- -vis r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97- Cus., and since the goods were not available for confiscation, it has imposed redemption fine of ₹ 20,00,000/- in lieu of confiscation on the Appellant No. 1. Besides, the impugned order has also imposed penalties on all the appellants in terms of Section 112 of the Act. 2. Brief facts of the case are that the Appellant No. 1 is a 100% EOU engaged inter alia, in the manufacture of Polyester Twisted Yarn (PTY). One of the raw materials used by the Appellant No. 1 to manufacture PTY is Partially Orient Yarn (POY). During the period November' 2001 to March' 2002, the Appellant No.1 had cleared 17 nos. of consignments of PTY to the EOUs namely, M/s. Bluemoon Textiles (1 consignment), M/s. Maharashtra Weaving Wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The Learned Advocate appearing for the Appellants submitted that since the duty demand has been confirmed on the above referred EOUs under the proviso to Section 3 of the Central Excise Act, 1944 on the alleged ground that PTY were diverted in the DTA, no further duty demand can be fastened on the raw material imported or procured indigenously without payment of duty by the Appellant No.1. In this context, the Learned Advocate has placed reliance on the following judgments delivered by the judicial forums:- (i) Commissioner of Central Excise Customs, Surat Vs Amitek Silk Mills P. Ltd., 2007 (216) ELT 166 (Tri Ahmd.) affirmed by Supreme Court in 2010 (254) ELT A98 (S.C.) (ii) Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Inc.- 2009 (248) ELT 122 (Bom.), affirmed by the Hon ble Supreme Court, reported in 2010 (255) ELT A 120 (S.C.). 4. On the other hand, the Learned AR appearing for the Revenue has reiterated the findings recorded in the impugned order and further submitted that the appeals of the appellants are devoid of merits and liable to be dismissed in view diversion of the PTY in DTA. 5. Heard both sides and examined the case records, including the written notes of submission filed after conclusion of hearing. 6. So far as confirmation of Customs duty demand on imported POY is concerned, we find that the duty on finished goods (PTY) has already been demanded under the proviso to Section 3(1) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the view that the same is not liable for confiscation, since the conditions of the notification dated 03.06.1997 has not been contravened. Material available in the case record proves the fact that the POY were used for the intended purpose and there was no contravention of post import condition. Even otherwise, the imported POY was not available for confiscation at the time of initiation of show cause proceedings, and as such, in view of the judgment of the Hon ble Bombay High Court in the case of Finesse Creation Inc. (supra), cited by the Appellant, no redemption fine can be imposed in the absence of goods being available for confiscation. 7. In view of the foregoing discussions, we do not find any reason to upho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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