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2019 (11) TMI 302

..... bonded warehouse situated inside their factory premises - removal of 509 reels of base paper of various varieties from the warehouse without filing an Ex-bond bills of entry and without paying customs duty - inherent contradiction in the impugned order - HELD THAT:- There is an inherent contradiction and ambiguity in the impugned order itself. The impugned order was passed on 10.08.2011. There is an inherent 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 bo .....

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..... d it in the Customs private bonded warehouse situated inside their factory premises. As per the procedure when the goods have to be cleared the respondent has to file Ex-bond bill of entry with the Jurisdictional Central Excise Range Officer, pay appropriate customs duty and take the goods out from the warehouse and utilize in the manufacture of the final products. 3. The officers of Anti-Evasion 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 investi .....

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..... hiv Kumar Mishra, Dy. General Manager of assessee has also confirmed that the base paper was available in their factory premises. This fact was further reiterated by Shri Shiv Kumar Mishra and Shri K.V. Rama Raju, who appeared for personal hearing before the Commissioner. Clearly, this finding of the Commissioner was factually incorrect. Consequently, dropping of confiscation proposal based on this 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 c .....

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..... ion fine can be imposed when the goods are not available for confiscation at all. He would argue that section 125 pre-supposes that the goods are confiscated and are available with the department and on payment of redemption fine the assessee can redeem the goods. Where the goods are not available for confiscation there is no question of their redemption. Further, he would submit that section 125 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 .....

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..... y premises. Relevant portion is as below: (iii) Because of repairs to the shutter of bonded premises, they had to keep the 509 reams of bases paper outside the bonded premises, though they were kept within the factory premises. Reference in this regard is drawn to the answer given to question no 4 during the course of recording of statement of Sri Shiv Kumar Mishra, DGM (Personnel) of the Unit under 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 corrob .....

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..... ble High Court of Bombay in the case of CC (Import), Mumbai Vs Finesse Creation INC [2009 (248) ELT 122 (Bom)], which was upheld by the Hon ble Apex Court [2010 (255) ELT A120 (SC)], the relevant portion of which is reproduced as hereunder: 8. There is an inherent 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 confi .....

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