TaxTMI 
TaxTMI 
2007 (4) TMI 340
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.... seized on the ground that there was violation of the ITC (HS) policy as the said car was prohibited and also on the ground that there was mis-declaration of the value and description. The appellant waived the issuance of the show cause notice and participated in the adjudication proceedings. After granting a personal hearing to the appellant the adjudicating authority came to conclusion that the imported car is liable for confiscation under Section 111(d) and 111(m) of the Customs Act, confiscated the car but gave an option of redeeming the same for re-export and also imposed penalty on the appellant under Section 112 of the Customs Act. Aggrieved by the said order the appellant has preferred this appeal. 3. The learned advocate appearing for the appellant submits that they are not challenging the valuation part of the imported car and submits that the valuation as arrived by the revenue is correct and have paid duty in September 2006 itself, despite this, the car is still in warehouse. It is his submission that they are challenging the confiscation of the vehicle on non-production of the homologation certificate. It is his submission that the said certificate is required to....
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....is not fit to ply in India, in the absence of homologation certificate. It is his submission that as confiscation is correct, the penalty imposed is correct. 5. Considered the submissions made by both sides at length and perused records. The issue involved in this case is whether the car imported by the appellant is liable for confiscation under Section 111(d) and 111 (m) and consequent penalty. Section 111(d) of the Customs Act, envisages for the confiscation of the goods imported, if they are contrary to prohibition imposed under the Customs Act or any other Act for the time being in force. If the imported goods are liable for confiscation, the Customs Act provides remedy against such improper imports in Section 125 of the Customs Act. I may read the same : "Option to pay fine in lieu of confiscation : Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods (or where such owner is not known, the person from whose poss....
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....tical to the issue before the Larger Bench only difference being the appellant herein has imported the goods. It is seen from the impugned order that the adjudicating authority has allowed the confiscated car to be redeemed on payment of redemption fine (for re-export), which in itself is indicative of the fact that it was accepted that these goods can be cleared and they may not fall under the tainted category. The ratio of the judgment of the larger bench in the case of A.K. Jewellers (supra) squarely covers the issue before me. 8. As regards the order of re-export on payment of redemption fine in lieu of confiscation, I find that the option to re-export or to clear for home consumption on payment of fine in lieu of confiscation, is prerogative of the importer and cannot be thrust upon him by the adjudicating authority. It has been correctly pointed out by the advocate, that similar issue was decided by the Hon'ble High Court of Judicature of Bombay in the case of Phoenix Overseas P. Ltd. (supra). Their lordships held as under :- "Once the goods are confiscated in accordance with the provisions of the Customs Act, the officer adjudging it, in the case of any goods, the imp....
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....10. In this case the appellant has already discharged the duty liability as worked by the authorities and hence it was for the appellant to decide whether to re-export or clear the car for home consumption. 11. Further I find that the authorities have been confiscating the imported cars which violate the conditions of ITC (HS) policy, but allowing them to be redeemed on payment of redemption fine. In the case of Davinder Singh v. CC (Appeals), Mumbai-I, as reported in 2006 (193) E.L.T. 359, imported car was seized for violating the ITC (HS) policy and was absolutely confiscated, but the appellate authority set aside the absolute confiscation, permitted the appellant to redeem the same on payment of redemption fine. This was not challenged by the revenue. It seems there is a consistent practice of allowing the imported cars (which when imported, violated the norms) for home consumption on payment of redemption fine. A Division Bench of the Tribunal in the case of Gauri Enterprises [2002 (145) E.L.T. 706] has held that "There being practice to release goods in similar cases on fine, reasonable legitimate expectation of appellants not to be frustrated by ordering otherwise"....