TMI Blog2021 (3) TMI 1389X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act provides that where any goods are confiscated under the Act, such goods shall thereupon vest in the Central Government. The respondent did not make any request for either the redemption of the goods or the sale proceeds and, therefore, a direction for payment of the sale products to the respondent could not have been issued. Of course, the redemption fine can be imposed only when a request for redemption of the goods or the sale proceeds is made. Imposition of the penalty is independent of the request for redemption and can be imposed under section 112 of the Customs Act. When the order confiscating the goods has been issued and the party has not opted to pay fine in lieu of such confiscation, then the goods can be sold and the sale proceeds would vest with the government. Penalty can still be imposed under section 112 of the Customs Act. An order for payment of all sale proceeds without deduction of redemption fine cannot, therefore, be issued - The issue as to whether the party can still opt to pay fine in lieu of such confiscation at this stage, has not been considered or decided by this Larger Bench and it will be open to the respondent to raise this issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving an application seeking condonation of the delay. In the mean time, the goods contained in the sixteen containers were auctioned by the Department between May 2013 and June 2013. It was only on 28.04.2014 that the respondent informed the adjudicating authority that it had filed an appeal before the Commissioner (Appeals) and was waiting for orders. 4. The respondent also filed an application for condoning the delay. The delay condonation application and the appeal were heard together by the Commissioner of Customs (Appeals) the Commissioner (Appeals) and by order dated 10.04.2014, the delay was condoned and the appeal was partly allowed. The order of payment of redemption fine of Rs. 20 lacs was set aside with a further direction that sale proceeds should be paid to the respondent after deducting the penalty amount of Rs. 10 lacs that was imposed upon the respondent. 5. The relevant portion of the order of the Commissioner (Appeals) is reproduced below: 5.3 The appellant vide letter dated 28.04.2014 requested the Adjudicating authority that they had already filed an appeal before the Commissioner (Appeals) and were awaiting the orders. However, as per Right to Informa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to submit a valid import license; the goods were liable for confiscation under Section 111(d) of the Custom Act. In view of the above, the order of confiscation of the imported goods cannot be faulted. The redemption fine and penalty were imposed in view of the facts and circumstances of the present case. 6. However, I find that the imported goods have already been disposed of by the Department during the pendency of appeal and without waiting for outcome of the appeal/legal remedies by the owner of the goods. Since, the goods are no longer available; the same cannot be redeemed by the appellant-importer on payment of fine. Consequently, there is no question of payment of redemption fine as well as Customs duties when goods cannot be released for home consumption. Therefore, the importer will be entitled to receive the part of sale proceeds received by the Customs at the time of auction of the imported good, subject to the Rules and regulation in this regard. The appellant has a valid claim from the Department. The penalty imposed to the extent of Rs. 10,00,000/- is legally valid as goods were liable for confiscation and penalty imposable. This penalty amount needs to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sunil Kumar, learned Authorized Representative of the Department contended that since the confiscation of goods was upheld by the Commissioner (Appeals), the goods vested in the Central Government in terms of section 126 of the Customs Act and such goods could be redeemed by the importer on payment of such fine as the officer thought fit, as is contemplated under section 125 of the Customs Act. It is his contention that when the goods were auctioned, the sale proceeds could be redeemed only after deduction of redemption fine, custom duties and other charges, and non-availability of the goods when the order in appeal was passed could not have been made a ground for setting aside the order by which the goods could be redeemed on payment of penalty and fine. It is also his contention that disposal of the goods during the pendency of the appeal has no relevance to the payment of redemption fine. In support of this contention learned Authorized Representative placed reliance upon the following decisions: (i) Collector of C. C.E., Chandigarh vs. Essma Woollen Mills (P) Ltd. (ii) Commissioner of Customs, Trichy vs. K. Baluchamy 2007 (216) E.L.T. 697 (Tri.-Chennai). (iii) Shabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng If any goods brought into India from a place outside India are not cleared for home consumption or warehoused or transhipped within thirty days from the date of the unloading thereof at a customs station or within such further time as the proper officer may allow or if the title to any imported goods is relinquished, such goods may, after notice to the importer and with the permission of the proper officer, be sold by the person having the custody thereof: PROVIDED that- ****** Explanation: ****** 13. It was noticed that the said containers were filled with marble blocks, which are restricted goods in terms of the EXIM policy and, therefore, in the absence of any license to import, these goods were liable to confiscation under section 111(d) of the Customs Act and penalty could also been imposed under section 112 of the Customs Act. Section 111 (d) of the Customs Act is reproduced below. 111. Confiscation of improperly imported goods, etc. The following goods brought from a place outside India shall be liable to confiscation: (a) ***** (b) ***** (c) ***** (d) any goods which are imported or attempted to be imported or are brought with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... void, unless an appeal against such order is pending. 15. It is against this order that the respondent filed an appeal before the Commissioner (Appeals). This appeal was filed beyond 60 days without moving an application seeking condonation of delay. It is was accordingly, dismissed on August 20, 2013. Between May 2013 and June 2013 the department auctioned the goods contained in the sixteen containers. 16. The records indicate that it was only on April 28, 2014 that the respondent informed the adjudicating authority that it had filed an appeal against the order passed by the Additional Commissioner and was awaiting orders. 17. There is nothing on the record to indicate whether any application was filed by the respondent for recall of the order 20.08.2013 by which the appeal was dismissed nor the date on which the application for condoning the delay was filed by the respondent has been mentioned. 18. The reason assigned by the Commissioner (Appeals) for holding that the respondent could not be compelled to pay redemption fine is contained in paragraph 5.4 of the order and it is again reproduced. I find that the appellant has not exercised their option of payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the penalty is independent of the request for redemption and can be imposed under section 112 of the Customs Act. 23. The view taken in Oriental Trimex that once the goods have been disposed, there is no question of payment of redemption fine as the goods are no longer available is, therefore, not a correct view. 24. What also impressed the Commissioner (Appeals) is the fact that the goods should not have been auctioned if an appeal had been filed to challenge the imposition of redemption fine and penalty. In the first instance, there is nothing on the record to indicate when the appeal was actually filed though the appeal must have filed beyond period of 60 days from the date of the communication of the order since the appeal was earlier dismissed on August 28, 2013, as it was not accompanied by a delay of condonation application. Secondly, there is nothing on the record to indicate when the delay condonation application was actually filed. Even otherwise, the records indicate, that it was only by letter dated 28.04.2014 that the respondent informed the adjudicating authority that an appeal had been filed. In this view of the matter, the Commissioner (Appeals) was not ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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