TMI Blog2022 (9) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Gangadhar Narsingdas Aggarwal [ 1995 (8) TMI 73 - SUPREME COURT] and also contrary to the CBEC Circular No.04/2012 dated 17.02.2012, we find the entire basis of demand is not sustainable. Levy of redemption fine - HELD THAT:- In view of the provisions, if the person does not opt for redemption within a period of 150 days, such option becomes void as per sub-section 3 of section 125 unless an appeal is pending against such order. In other words, the confiscation becomes absolute. In this case, where the goods have already left the country, the person has no reason to opt to pay redemption fine. Redemption cannot be forced on the person. There is another reason why only goods which are attempted to be exported can be confiscated under section 113 and not goods which are already exported. As per Section 126, on confiscation, unless the goods are redeemed on payment of redemption fine, the property vests with the Central Government and it is the responsibility of the officer, adjudging the confiscation, to take and hold possession of the confiscated goods. In a case where the goods have already been exported, it is impossible for the adjudicating authority to take po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 125 of the Customs Act, 1962 in lieu of confiscation; (iv) I hold that M/s BBPL are liable for penalty under section 114(ii) and 114A of the Customs Act, 1962 for their omissions and commissions which rendered the goods liable for confiscation. However, I do not impose any penalty on M/s BBPL under section 114(ii) as separate penalty was proposed under section 114A of the Customs Act, 1962; (v) I order that the amount of Rs.1,18,12,250/- paid by M/s BBPL during the investigation be appropriated towards duty confirmed as at Sl.(i) above; (vi) I impose a penalty of Rs.1,41,85,056/- (Rupees one Crore forty one Lakhs eighty five Thousand and fifty six only) equivalent to duty and interest on M/s BBPL under section 114A of Customs Act, 1962 for deliberate and wilful suppression of facts with an intention to evade payment of duty; (vii) I impose a penalty of Rs.20,00,000/- (Rupees twenty Lakhs only) on Shri Anand Kumar Agrawal, Director of M/s BBPL under section 114(ii) of Customs Act, 1962 for his omissions and commissions which rendered the goods liable for confiscation; (viii) I impose a penalty of Rs.20,00,000/- (Rupees twenty Lakhs only) on Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on dry weight basis. After the goods had left India, the overseas buyer had cancelled the order and the exporter sold the goods to another customer in Hong Kong. At the discharge port, a sample of the iron ore fines was again tested and it was found that the Fe content was 62.11% on dry weight basis. 4. The Directorate of Revenue Intelligence (DRI), Visakhapatnam received intelligence that the appellant had misdeclared the Fe content in its Shipping Bill as the test report at the discharge port indicated that the Fe content was 62.11% and accordingly, the appellant should have paid the export duty at Rs.300 per MT. Based on the intelligence collected and investigation conducted by the DRI, a show cause notice dated 01.07.2011 was issued by the Commissioner of Customs, Visakhapatnam proposing to re-assess the export duty and recover the differential duty at Rs.250 per MT under the proviso to Section 28(1). It also proposed to recover interest under Section 28AB of the Customs Act, 1962, and to hold that the exported goods were liable for confiscation under Section 113(i) of the Customs Act and impose penalties on the exporter under Section 114(ii)/ 114A of the Customs Act. It fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which they have been obtained for commercial requirements had tested Fe content on dry basis. Therefore, the entire basis for the show cause notice is faulty. (3) He further submits that as per Section 113, goods which are intended to be exported i.e., export goods, only can be confiscated and not goods which have already been exported. Therefore, the order of confiscation under section 113 cannot be sustained. Consequently, penalties imposed under section 114 also do not survive. (4) As far as the penalty under section 114A is concerned, he submits that this can be imposed only if there is a differential duty demanded to be recovered and which has been evaded due to willful suppression of facts with an intention to evade payment of duty. In their case, there is not only no wilful suppression of facts but no suppression of facts at all. All test reports were presented and it is the department which has decided that the assessment shall be done on the basis of the test report of CRCL and has obtained a bond from it, that the exporter would abide by the test report of the CRCL. As per the test report of the CRCL, no demand can be sustained. He, therefore, prays that the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of export and realisation dt.13.03.2009 the rate charged is USD 177.50 per DMT and 62.11% Fe basis which is based on the CIQ results issued in this regard. 10. Learned counsel for the appellants clarifies that CIQ refers to discharge port report on basis of which present demand has been confirmed. Since the entire demand is based on test report on dry MT basis, which is contrary to the judgment of the Supreme Court in the case of Gangadhar Narsingdas Aggarwal and also contrary to the CBEC Circular No.04/2012 dated 17.02.2012, we find the entire basis of demand is not sustainable. Consequently, the demand for differential duty and interest cannot be sustained. 11. We further find that the confiscation in the impugned order is under section 113 of the Customs Act which provides for confiscation of export goods. Export goods are defined under section 2(19) of the Act as follows: (19) export goods means any goods which are to be taken out of India to a place outside India; 12. Evidently, section 113 contemplates only confiscation of goods which are attempted to be improperly exported and not goods which have actually been exported. The reason for this is once ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en charged or paid or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts, the person who is liable to pay the duty or interest, as the case may be, as determined under sub-section (8) of section 28 shall also be liable to pay a penalty equal to the duty or interest so determined: Provided that where such duty or interest, as the case may be, as determined under sub-section (8) of section 28, and the interest payable thereon under section 28AA, is paid within thirty days from the date of the communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent of the duty or interest, as the case may be, so determined: Provided further that the benefit of reduced penalty under the first proviso shall be available subject to the condition that the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso : Provided also that where the duty or interest determined to be payable is reduced or increased by the Commission ..... 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