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2019 (11) TMI 302

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..... erent contradiction between the two findings. Para 13 records that the assessee was asserting that they were very much available. In Para 17, learned Commissioner records that since the goods were not available within the premises of the bonded warehouse, they are not liable for confiscation. In fact, if the goods were available within the bonded warehouse and have not been removed from there, they are not liable for confiscation at all - On this ground the goods will be liable for confiscation only if they have been removed from the customs bonded warehouse clandestinely without filing ex-bond bill of entry and without paying the customs duty. In such a case, if the goods are available outside the bonded warehouse, they are liable for conf .....

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..... n Section, Hyderabad-I Commissionerate visited the factory on 16.04.2010 and found that they had removed 509 reels of base paper of various varieties from the warehouse without filing an Ex-bond bills of entry and without paying customs duty. During the course of investigation, the respondent paid the customs duties along with interest. After investigation, a show cause notice was issued to the respondent demanding the customs duties under section 72 read with section 28 of Customs Act, 1962. It was proposed to appropriate the amount of duty paid by them. It was further proposed to demand an interest of ₹ 3,03,828/- under section 28 and demand interest on the short paid amount of customs duty of ₹ 31,977/-. Further, it was propo .....

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..... his incorrect finding is incorrect too. b) Even otherwise, physical availability of the goods is not always precondition for imposing redemption fine. The Hon ble Apex Court in the case of Weston Components Ltd [2000 (115) ELT 278 (SC)] has categorically held that redemption fine is imposable even after release of goods on execution of bond. In the case of Munjani Bros [2011 (265) ELT 396 (Tri-Mumbai)] where the goods imported by a party were allowed to be cleared under bond and where such goods were eventually found to be liable for confiscation under section 111 of the Customs Act, it would be open to the adjudicating authority to impose find in lieu of confiscation. Accordingly, it was prayed that the matter may be remanded to the origin .....

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..... 5 is only an option given to the assessee for redemption of goods. If the assessee chooses not to redeem the goods the confiscation can continue. Therefore, in a situation where there are no goods which can be confiscated the question of imposition of redemption fine does not arise. He relies on the case laws of Finesse Creations Inc. [2009 (248) ELT 122 (Bom)], Shiv Kripa Ispat Pvt Ltd [2009 (235) ELT 623 (Tri-LB)], Bhagyanagar Metals Ltd [2016 (133) ELT 395 (Tri-LB)] and Atul Ltd [2017 (356) ELT 467 (Tri-Mumbai)]. When specifically questioned about these cases and the case laws cited by the learned DR, learned counsel would argue where the goods have been seized and provisionally released on bond it is open for the department to impose re .....

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..... nder section 14 of the Central Excise Act. 7. On the other hand, learned Commissioner recorded his finding in Para 17 as follows: 17. Regarding their contention that the impugned goods were available in the factory premises, it was found that the goods were not available in the bonded area and the assessee have not come up with any evidence to corroborate their above contention. In the absence of the same, one can only conclude that the goods removed unauthorizedly from the private bonded warehouse were either removed clandestinely or consumed in the factory of production. While it is contended that the goods were removed from the warehouse because of some repair to the shutter, it was incumbent on their part to have kept the department inf .....

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..... 7, learned Commissioner records that since the goods were not available within the premises of the bonded warehouse, they are not liable for confiscation. In fact, if the goods were available within the bonded warehouse and have not been removed from there, they are not liable for confiscation at all. On this ground the goods will be liable for confiscation only if they have been removed from the customs bonded warehouse clandestinely without filing ex-bond bill of entry and without paying the customs duty. In such a case, if the goods are available outside the bonded warehouse, they are liable for confiscation. In this case, the assessee asserts in their statements recorded by the officers during investigation as well as in their submissio .....

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