TMI Blog2023 (7) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Since in the instant case, the appellant/ revenue has accepted the setting aside order of confiscation of goods, question of applying provisions of Section 125 dealing with the redemption fine which are in lieu of confiscation would not arise and therefore, on this ground itself, question of setting aside redemption fine as raised by the appellant revenue does not arise. This Court in the decision in cases of COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS FINESSE CREATION INC. [ 2009 (8) TMI 115 - BOMBAY HIGH COURT] , COMMISSIONER OF CUSTOMS (IMPORT) VERSUS M/S RISHI SHIP BREAKERS [ 2009 (9) TMI 974 - BOMBAY HIGH COURT] and COMMISSIONER OF CUSTOMS (EXPORTS) VERSUS SUDARSHAN CARGO PVT. LTD. [ 2010 (7) TMI 325 - BOMBAY HIGH COURT] , have held that if the goods are not available for confiscation there cannot be any redemption fine. The Supreme Court has dismissed the SLP of the revenue in the case of COMMISSIONER VERSUS FINESSE CREATION INC [ 2010 (5) TMI 804 - SC ORDER] - In the instant case, admittedly the appellant/revenue could not find actual goods for confiscation and therefore, the order setting aside the redemption fine is in consistence with the decisions of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) Whether the CESTAT, being the last fact finding authority, passed reasoned order to set aside the fine and penalty ? BRIEF FACTS :- 2. The period under consideration is 2010-2012. During the said period, the Appellant was a Public Sector Undertaking owned and controlled by the Union of India. 3. The Respondent is engaged in the business of plying the cargo and passengers by air. The Respondent imported various aircraft parts falling under the heading 8802 and the said parts were cleared by availing the benefit of exemption under Notification No. 21/2002 dated 1st March 2002 as amended by Notification No. 37/2007 dated 7th March 2007. 4. The revenue conducted On-Site Post Clearance Audit of the respondent/assessee for the financial year 2011-12 on the basis of the records provided by the respondent assessee. The respondent assessee had imported parts of aircraft and claimed exemption under Notification No. 21 of 2002. As per the condition of the exemption, the exemption from duties of customs is available for parts of aircraft imported for servicing, repair or maintenance of aircraft which is used for operating scheduled air cargo services and for the aircraft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -. The respondent/assessee further submitted that looking at inventory of more than Rs. 1100 crore, minor discrepancy is inevitable. On 28th April 2016, the Commissioner of Customs passed an Order-in-Original rejecting the contention of the respondent/assessee and confirming the demand of custom duty amounting to Rs. 1,47,94,926/-. The Commissioner also passed an order confiscating the excess goods valued at Rs. 3,08,18,771/-. However, respondent/assessee was given an option to redeem the same on payment of redemption fine of Rs. 50,00,000/- under Section 125 of the Customs Act. The Commissioner also imposed a penalty of Rs. 25,00,000/- under Section 112(a) of Customs Act. 7. The respondent assessee challenged the aforesaid Order-in- Original by filing an appeal to the Tribunal. On 25th September 2019, the Tribunal disposed of the said appeal and confirmed the demand of duty on the ground that the respondent assessee has not been able to satisfy the post importation condition in respect of shortages determined. However in para 4.7 of its order, the Tribunal set aside the order on confiscation of the goods and redemption fine imposed. In so far as the penalty under Section 112(a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 009 (para 3); iii) Commissioner of Customs (Exports) Vs. Sudarshan Cargo Pvt.Ltd., 2010 SCC OnLine Bom 2092 (paras 3 4) iv) Commissioner of Customs Vs. National Leather Clothes Manufacturing Co., (2015) 321 ELT 135 (Bom.) 10. The respondent/ assessee also contended that since the goods were not available for confiscation, there is no question of redemption fine. 11. Heard learned counsel for the appellant and the respondent. 12. Question (a) of the present appeal as raised deals with setting aside of the redemption fine imposed under Section 125 of the Customs Act on excess found goods cleared under bond. Section 125 of the Customs Act provides that whenever confiscation of any goods is authorised by this Act, the officer may give to the owner of the goods an option to pay in lieu of confiscation such fine as the said officer thinks fit. The provisions of Section 125 of the Customs Act are attracted if there is a confiscation of goods because redemption fine is in lieu of confiscation of goods. In the present case, the Tribunal in paragraph 4.7 of its order has set aside the order of confiscation of goods and the said finding of the Tribunal setting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra) , have held that if the goods are not available for confiscation there cannot be any redemption fine. The Supreme Court has dismissed the SLP of the revenue in the case of Commissioner of Customs (Import) Vs. Finesse Creation Inc. 2010 SCC Online SC 1452. In the instant case, admittedly the appellant/revenue could not find actual goods for confiscation and therefore, the order setting aside the redemption fine is in consistence with the decisions of this Court. The appellant/revenue has relied upon the case of Unimark Remedies Ltd. (supra) which has taken a view that the redemption fine can be imposed even though there was no seizure and the goods were already cleared. In our view, this decision is distinguishable on the facts since in the present case, there was no actual excess stock found but it was only in the account books that an excess was worked out by the Chartered Accountant which too was reconciled by the internal audit team of the respondent/ assessee and excess figure was substantially reduced whereas in the case of Unimark ( supra)actual goods were available for confiscation and penalty was sought to be levied on non fulfillment of post import condition. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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