2009 (5) TMI 786

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....ng aggrieved with that part of the impugned order of Commissioner (Appeals) vide which, while confirming duty on the allegations of clandestine removal, he has upheld that part of Assistant Commissioner's order vide which the goods were not confiscated and no redemption fine was imposed. For better appreciation I reproduce para 5.1 & 5.2 of Commissioner (Appeals)' order. "5.1. It is noticed ....

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....ut payment of duty, can be confiscated and redemption fine imposed without having been seized. A close reading of Section 125 of Customs Act, 1962 indicates that confiscation which amounts to taking over the ownership of the offending goods is penal in nature. The offer of option for redemption on payment of fine is in the nature of concession. Even when option of redemption is granted on payment ....

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....e Tribunal's said decision is reproduced below :- - - it is also on record that the goods were not physically available for confiscation. Redemption fine was not to be imposed in lieu of confiscation on any goods where the goods are not physically available to be redeemed. The cited cases of Weston Components (supra) is distinguishable. In this view of the matter, we set aside the fine also----" ....