Penalty under Customs law cannot replace confiscation when imported goods are no longer available for confiscation.

Penalty under Section 112(a) of the Customs Act was held unsustainable where the imported goods had already been provisionally released and were not available for confiscation. The Tribunal applied the settled principle that, in the absence of goods for confiscation, redemption fine may be considered but penal action cannot be imposed in place of confiscation. On that basis, the penalty was set aside and the appeal was allowed.

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Issues: Whether penalty under Section 112(a) of the Customs Act, 1962 could be sustained when the imported goods were not available for confiscation.

Analysis: The order recorded that the goods had already been released provisionally and were not available for confiscation. In such a situation, penal action was treated as having been imposed in lieu of confiscation. Applying the settled principle that where goods are not available for confiscation, redemption fine may be considered but penalty cannot be imposed in place of confiscation, the Tribunal held that the penalty was unsustainable.

Conclusion: The penalty was set aside and the appeal was allowed.

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