TaxTMI 
TaxTMI 
2016 (11) TMI 139
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....details of the respective show cause notices. The issue, in brief, is that goods were exported under claim for drawback and the foreign exchange proceeds were not repatriated; likewise, the value of the goods was allegedly misdeclared to the extent of about eight times their actual value. It is contended that the goods having contravened section 113 of Customs Act, 1962 was liable to be confiscated. Section 125 of Customs Act, 1962 affords the adjudicating officer the authority to impose redemption fine for release of the confiscated goods. The original authority confiscated the offending goods but did not impose a fine in lieu of confiscation which Revenue is aggrieved about. 3. We observe that the issue raised by Revenue can be resolved in short order. Notwithstanding the facts pertaining to either case, it must be admitted that the export goods were not physically available within the landmass of India for taking possession of. Confiscation is a power that is conferred by law to be exercised in accordance with the authority vested in the proper officer and in conformity with the process prescribed by law. The gravitas of confiscation is such that it is not to be exercised whims....
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....will make this amply clear as '126. (1) When any goods are confiscated under this Act, such goods shall thereupon vest in the Central Government. (2) The officer adjudging confiscation shall take and hold possession of the confiscated goods.' Read together, it would appear that confiscation shall be resorted to only when the goods can be taken possession of. In the absence of the goods, the liability to confiscation may be adjudged without confiscating the goods. It was, in all probability, the impossibility of fulfilling the inalienable legal obligation to take and hold possession of the goods that forestalled such action in the impugned order. 6. The exercise of the option to redeem confiscated goods under section 125 of Customs Act, 1962 places the burden of releasing such goods to the payee of the fine upon the adjudging authority. Goods that have never been taken possession of by the adjudicating authority cannot be released. Such an eventuality is hardly likely to enhance the credibility of the Central Government. Likewise, the exercise of option confers a choice on the owner or possessor of the goods to redeem or not to redeem. In the event ....
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....ng that he was connected to M/s President Fashions, and its exports, in any manner, he has questioned the confiscation of goods ostensibly to invalidate resort to section 114 of Customs Act, 1962 as applied to him in the impugned order. However, in the absence of an appeal by the entity aggrieved by the confiscation, we find ourselves unable to tread in that direction. Our disposal of the appeal must necessarily be limited to acertainment of the ground that there is no evidence linking the appellant to the impugned exports. 11. Predictably, the appellant has denied any link and seeks to dispute the contrary finding in the impugned order by the averment that it is based on the statements of Shri Bhim Narayan Singh of M/s MK Shipping and that of Shri Ashok Singh of M/s Tradex Industrial Corporation both of whom are interested parties as they had undeniable links with the exporter, M/s President Fashions. The failure to bring these individuals, who are crucial witnesses, to the fore for cross-examination was pointed out to emphasize the non-reliability of their statements recorded during investigation. The appellant also submits that with the indictment of Shri AM Pendharkar of M/s P....
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....e ground that it stood corroborated by other statements.' would render the findings of the adjudicating authority based on the statements of Shri Pendharkar, whose protestations of innocence were also not found acceptable, to lack credibility. 13. Learned Authorized Representative cited the approval accorded by the Honble Supreme Court to the decision of the Hon'ble High Court of Allahabad in Praveen Dumar Saraogi v. Union of India [2014 (299) ELT 151 (All)] that statement of co-accused can be used against accused of the same case to justify the reliance placed on the various statements that explained the role of the appellant in the overvaluation of exports. The decisions of the Hon'ble Supreme Court in Om Prakash Bhatia v. Commissioner of Customs, Delhi [2003 (155) ELT 423 (SC)] and Commissioner of Central Excise, AP v. Suresh Jhunjhunwala [2006 (203) ELT 353 (SC)] are not of much relevance as these deal with confiscation which we, with deliberate intent, do not wish to go into. Though the Learned Authorized Representative attempted to justify the severe penalty imposed on the appellant, as the alleged kingpin, by placing reliance on the decision of the Hon'ble High Court of D....