AI Drafter 
TaxTMI 
TaxTMI 
2018 (7) TMI 793
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....d not meet the standards. Accordingly, after following due process of law, the Additional Commissioner of Customs ordered confiscation of the goods viz., steel wires imported by the appellant under Section 111(d) of the Customs Act r/w Bureau of Indian Standards Act, 2016 and Steel and Steel products (Quality Control) order, 2015. He also gave the appellant an option to redeem the goods only for the purpose of re-export on payment of redemption fine of Rs. 2,00,000/- under Section 125 of the Customs Act, 1962. He also imposed a penalty of Rs. 1,00,000/- on the appellant under Section 112(a) of the Customs Act, 1962. Aggrieved, the appellant approached the Commissioner (Appeals), who vide Order-in-Appeal No. VIZ-CUSTM-000-APP-040-16-17 dated 19.07.2016, remanded the matter back to the Additional Commissioner. The matter was read judicated by the Additional Commissioner of Customs vide Order-in-Original No.91/2016 dated 09.09.2016 and he re-confirmed the confiscation of the goods under Section 111(d) of the Customs Act, 1962.He gave the importer an option to redeem the goods only for the purpose of re-export on payment of redemption fine of Rs. 2,00,000/- under Section 125 of t....
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....the Hon'ble Apex Court held that there is no reason for non-release of goods which will be imported for use and the manufacture of the product. He also relied on the judgment of the Tribunal in the case of Commissioner of Customs Vs Aban Exim Pvt. Ltd. [2014 (307) ELT 598],in which it was held that imposition of conditions while granting option to redeem confiscated goods is not warranted. 3. Learned Departmental Representative (DR), on the other hand, reiterated the arguments made in the Order-in-Original and Order-in-Appeal and argued that simply because the goods were not absolutely confiscated and redemption was allowed, it does not mean that the goods which do not meet the BIS Standards should be allowed to be used inIndia, contrary to the policy. He relied on the following case laws in which redemption fine was imposed and re-export of the confiscated goods was allowed. 1. Collector of Customs, Bombay Vs Elephanta Oil & Industries Ltd[2003 (152) ELT 257 (SC)], in which it was held that when the goods were confiscated and thereafter they were permitted to be re-exported;penalty can be imposed under Section 112 of the Customs Act. 2. A K Jewellers Vs Commis....
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....conditions for the release of the confiscated goods. The Collector of Central Excise in his order says, "In addition the import duty leviable on all these items together with other charges, if any payable, should be paid and necessary formalities gone through before the goods can be passed out of Customs Control." In Shewpujanrai Indrasanrai Ltd. v. Collector of Customs,1959 SCR 821: 1983 E.L.T. 1085, a similar question arose for consideration of this Court. There by an impugned order the Collector of Customs imposed two conditions for the release of the confiscated goods, namely, (1) the production of a permit from the Reserve Bank of India in respect of the gold within four months from the date of despatch of the impugned order, and (2) the payment of proper customs duties and other charges leviable in respect of the gold within the same period of four months. This Court held, agreeing with the High Court, that the Collector of Customs had no jurisdiction to impose the said two conditions. The learned Additional Solicitor General concedes that the said decision applies to the present case. We do not, therefore, express any view whether that decision can be distinguished in its ap....
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.... of the goods on payment of fine and there after permitting them to be re-exported. Each of these two actions is independent and is permitted by law. An order where by both are combined, therefore, is not contrary to law. 11.If we take up the issue from another angle that where the adjudicating authority allows re-export of the prohibited goods and in such a case, by holding that the order of confiscation and redemption fine is not justifiable, this will make the provisions of Section 125 of the Customs Act redundant which specifically empowers the adjudicating authority to exercise his powers in respect of prohibited goods. As confiscation and redemption fine in lieu of confiscation and re-export are two independent actions, hence the view taken that in case the assessee is allowed to re-export, the confiscation and redemption fine is not justified, is not a correct view. Further, we find that this view is also taken by the Hon'ble Supreme Court in the case of C.C. v. Elephanta Oil & Industries Ltd. reported in 2003 (152)E.L.T. 257 (S.C.) rejected the contention of the importer that once the imported article is re-exported as directed by the department, there is no questi....
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....ver 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 possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit." 10. From the aforesaid two sections, it is apparent that both operate in different fields, namely, one requires imposition of penalty and other provides for confiscation of improperly imported goods. Section111 provides that goods brought from the place outside India are liable to confiscation if the goods are improperly imported as provided therein. In cases where goods are liable to confiscation, discretion is given to the authority to impose penalty. Further, Section 125empowers confiscation of such goods and thereafter, confiscated goods vest in the Central Government. The Section further empowers the authority to give an option to the owner or the person from whom goods are seiz....
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....t confer upon the Authority passing the Order any power to impose any conditions while allowing redemption of goods. 11. The scope of Section 125 of the Act is limited by the words in which it is framed and it is not open to the adjudicating authority or the Tribunal(who are creatures of the statute) to stretch, modify or restrict the scope of this Section; they are bound by it. Hon'ble Supreme Court and High Courts can and do examined the validity of the laws and subordinate legislations and pass judgments annulling or modifying them by neither the officers nor the Tribunal, as creations of the statute cannot do so. This position has been explained clearly by the Hon'ble Supreme Court in UOIVs Kirloskar Pneumatics Company 1996 (84) ELT 401 (SC) in which it washeld as under: "According to these sub-sections, a claim for refund or an order of refund can be made only in accordance with the provisions of Section27 which inter alia includes the period of limitation mentioned there in. Mr. Hidayatullah submitted that the period of limitation prescribed by Section 27 does not apply either to a suit filed by the importer or to a writ petition filed by him and that in such case....