TaxTMI 
TaxTMI 
2017 (9) TMI 1454
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....seized along with vehicle under Panchnama dated 11/12.6.2014. Later, on completion of investigation, show cause notice was issued proposing absolute confiscation of the seized goods and vehicle with proposal for penalty on the Appellant and other noticees. Since the Application for settlement before the Settlement Commissioner was rejected; on adjudication, the ld. Commissioner of Central Excise & Customs, directed confiscation of the seized goods with an option to redeem the same on payment of fine of Rs. 20,25,000/-, ordered appropriation of customs duty of Rs. 69,52,000/- and interest of Rs. 14,40,025/- declared and paid before the settlement commission; also directed confiscation of the vehicle with an option to redeem the same on payment of fine of Rs. 15,00,000/-, imposed penalty on other noticees under Section 112(a) of the Customs Act, 1962. Aggrieved by the said order, Revenue has filed this Appeal before this Tribunal. The Respondent has not challenged the said Order either filing an Appeal or Cross-objection before this forum. 3. Ld. A.R. Dr. J. Nagori for Appellant-Revenue submitted that the ld. Commissioner s observation that the gold bars removed from the SEZ are not....
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....e quantum of fine should commensurate depending on the circumstances of the case and the gravity of the offence committed; the yardstick of wiping out of the margin of profit through fine always cannot be a safe principle. In the present case, the Respondent had imported duty free gold for its authorized use in the SEZ and export, in accordance with the policy of Govt. to boost export; whereas the said facility of benefit of duty free import has been abused and the goods were attempted to be diverted to the local market clandestinely. Further, he has submitted that since the ld. Commissioner has considered the gold removed from the SEZ is an act of smuggling, accordingly, benefit of exemption Notification 12/2012-Cus should not have been allowed in computing the duty. In support, the ld. A.R. referred to the judgment of the Hon'ble Supreme Court in the case of C.C.(Preventive), Mumbai Vs. M. Ambalal & Co. - 2010 (260) ELT 487 (SC). 5. Ld. Advocate Shri S. R.Dixit for the Respondent has submitted that gold was imported in SEZ area following the proper procedure and with the permission and knowledge of the SEZ and Custom Authorities. It is his contention that since the date of setti....
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....appropriate. However, alternatively, he has submitted that at the most, fine could be equal to 5% of the value of the goods i.e. Rs. 33.75 lakhs, without prejudice to the submission advanced earlier. He has further submitted that the Respondent had already been incurring heavy losses. 6. Heard both sides and perused the record. The Revenue has come up in Appeal against the impugned order to the extent of not directing absolute confiscation of the goods seized; also alternatively, the quantum of fine imposed is too low. Besides, the Revenue has also disputed the quantum of duty and interest paid and appropriated by the adjudicating authority. 7. As far as the first issue relating to plea for absolute confiscation under sec. 125 of CA,1962 is concerned, it is necessary to refer to the said provision of law which reads as under: Option to pay fine in lieu of SECTION 125. confiscation. (1) 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....
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....ariably direct absolute confiscation of the goods. In these premises, thus to consider the issue raised at the bar that whether the gold bars removed from the Unit in SEZ with out permission and contrary to the Circulars issued by RBI and Customs, became prohibited goods, or otherwise, in our view, becomes more an academic exercise and hence need not be resorted to. 10. The other argument advanced by the ld. A.R. for the Revenue is that in view of the judgment of Hon'ble Madras High Court in P. Sinnasamy's case, discretion conferred under the provision cannot be arbitrary and it is to be exercised in judicious manner. From the finding of the ld. Commissioner, we notice that even though he has not considered the goods as prohibited ones, observing it in the sense that these are not arms, ammunitions, narcotic substance, but after examining the fact that the gold bars were imported for its authorized use in the SEZ and after considering other extenuating circumstances, exercised discretion in directing confiscation of the gold bars removed unauthorizedly from the SEZ Unit with option to redeem the same on payment of fine. We find that in P. Sinnasamy's case (supra), the adju....