TMI Blog2009 (1) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... Facts of the Excise Appeal: (i) The appellants in this appeal were engaged in the manufacture of MS/CTD bars falling under Chapter 72 of the Schedule to the Central Excise Tariff Act. From the results of investigations into their operations, it appeared that they had been removing the excisable goods clandestinely without payment of Central Excise duty. In fact, the Factory Manager, in his statement dated 21-02-2006 recorded under Section 14 of the Central Excise Act, confessed to clandestine removal of MS bars of different sizes valued at Rs. 2,04,679/- to one M/s. Hari Om Steels on 06-02-2006. He also volunteered to pay duty on such goods. In a subsequent show-cause notice, the jurisdictional Assistant Commissioner proposed: (a) to demand duty of Rs. 33,404/- from the appellants under Section 11A(1) of the Central Excise Act and appropriate the amount already paid, towards such demand; (b) to confiscate the above goods under Rule 25 of the Central Excise Rules, 2002; and (c) to impose penalty on the party under Section 11 AC of the Act read with Rule 25 ibid. (ii) The above proposals were contested by the party in their reply to the show-cause notice. They resisted confiscation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t over Rs. 4.7 crores (CIF). The ship with spares and other machinery/accessories were assessed under CTH 8908.00 and the ROB was assessed under CTH. 2710.90 as declared by the importer. Upon payment of the duty assessed, me vessel was allowed out of customs charge and permission for scrapping it was granted. Later on, a tanker-lorry carrying ROB from the above ship was detained by the customs authorities and representative samples of Fuel Oil and Diesel Oil were drawn in the presence of the importer's representative and CHA. The test report on the sample of Diesel Oil matched the importer's declaration. But the test report on the sample of Fuel Oil stated that, in view of its composition (Ash content of 1.1% by weight, Sediment of 1.1 % by weight and Water content of 33.3% by weight), it could be considered as "off specification material/waste oil". The explanation given by the party vis-a-vis the test report on what was declared by them as Fuel Oil did not convince the customs authorities. After recording statements of the importer's authorized signatory and conducting allied enquiries, the department issued a show-cause notice to them proposing inter alia to confiscate 87.345 MT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The department, on the basis of certain data collected by them, found the declared value to be very low. According to them, the CIF value should be US $ 15 per piece. On this basis, it was alleged that the importer had misdeclared the value of the goods. The show-cause notice containing this allegation proposed to confiscate the goods under Section 111 of the Customs Act as also to impose penalty on the importer under Section 112 of the Act. After hearing the party, the adjudicating authority confiscated the goods and also imposed a fine of Rs. 60,000/- in lieu of confiscation. It also imposed a penalty on the importer. The party preferred appeal to the Commissioner (Appeals) and the latter set aside the redemption fine in view of the Supreme Court's judgment in Weston Components Ltd. v. Commissioner of Customs, New Delhi 2000 (115) E.L.T. 278 (S.C.) and reduced the quantum of penalty. Aggrieved by the appellate Commissioner's decision, the department went in appeal, which was dismissed by the Tribunal. The department approached the High Court in appeal against the Tribunal's decision. One of the questions of law raised in that appeal was whether redemption fine under Section 125 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in the survival of the proceedings under Section 124 even though the seized goods might have to be returned or already stood returned in terms of Section 110 after the expiry of the permissible period of seizure. Reliance was also placed on the Bombay High Court's judgment in Commissioner of Customs v. Wockhardt Hospital Heart Institute - 2006 (200) E.L.T. 15 (Bom.) wherein, in the context of considering the recoverability of duty from a hospital in respect of medical equipment confiscated under Section 111(o) of the Customs Act with option for redemption of the goods on payment of fine in lieu of confiscation under Section 125 of the Act on the ground of breach of conditions of Customs Notification No. 64/88, the Hon'ble High Court held that the Revenue was entitled to recover such duty whether or not the owner of the goods exercised the option to redeem the goods. 8. In his rejoinder, the learned counsel pointed out that the Special Leave Petition filed by M/s. Venus Enterprises against the Madras High Court's judgment had been admitted by the Supreme Court. At this stage, the learned JCDR informed us that the SLP was dismissed. We have found, on record, a copy of the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned authorities subject to furnishing undertaking/bond etc. However, in the present case, admittedly, the goods were cleared by the respondent-authorities without execution of any bond/undertaking by the assessee. Thus, in view of the fact and circumstances of the case, we find no error in the impugned orders. No substantial question of law arises for our determination in the present appeal and the same is hereby dismissed." (emphasis supplied.) 10. We have also particularly noted a decision of the Tribunal (cited by the learned advocate) which stands upheld by the Supreme Court. In Chinku Exports case, the Tribunal had held the redemption-fine-related issue against the Revenue in para (10) of its order, reproduced below: "10. In view of the aforesaid findings and analysis, we are of the considered opinion that none of these charges upheld in the order impugned are in fact sustained by our analysis. In this connection we are also surprised to find that the redemption fine of Rs. 2.89 lakhs has been imposed when the goods were not available for confiscation, the same having been exported many years ago. Neither was any bond with a security in any format available with the Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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