TaxTMI 
TaxTMI 
TaxTMI 
2018 (11) TMI 99
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.... option given, such option shall become void, unless an appeal against this order is pending" 16. I impose a penalty of Rs. 50,000/- (rupees Fifty Thousand only) on importer M/s Nathi Mal Rugan Mal under section 112(a) of the Customs Act, 1962 17. This order is passed without prejudice to any other action that may be taken against the abovementioned firms and persons under the provision of the Customs Act, 1962 and/ or any other law, for time being in force in the Republic of India." In the second order goods imported vide Bill of entry No 5372538 dated 27.02.2018 having declared assessable value of Rs. 51,55,575/- have been confiscated and allowed to be redeemed for re-export in on payment of redemption fine of Rs. 1,00,000/- (Rs One Lakh Only). A penalty of Rs. 50,000/- has been imposed in this case. 2.0 In both the appeal, appellant have made the following prayer- "1 In view of the foregoing, it is very sincerely and humbly prayed that the Hon. Bench of CESTAT may kindly allow the appeal by setting aside O-in-O as well as the O-in-A by ordering the release of goods for home consumption on payment of such redemption fine which may deem just, fair and equitable. The entire....
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....produce the provisions of Section 125 of the Customs Act, 1962 which empower the officer of Customs to adjudge the issue in relation to confiscation of goods under various circumstances: "SECTION 125. Option to pay fine in lieu of 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 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: Provided that where the proceedings are deemed to be concluded under the proviso to sub-section (2) of section 28 or under clause (i) of sub-section (6) of that section in respect of the goods which are not prohibited or restricted, the provisions of this section shall not apply: Provided further that], without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the....
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....When an adjudicating authority after ordering confiscation of imported goods permits their re-export, he is in effect first ordering the redemption of the goods on payment of fine and thereafter permitting them to be reexported. Each of these two actions is independent and is permitted by law. An order whereby 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....
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....ranted by the Commissioner to re-export and therefore the question that Commissioner cannot pass an order granting permission to re-export while imposing redemption fine does not arise in this case. In paragraph 48 of the order impugned the Commissioner refers to the argument as to whether simultaneous imposition of two conditions, namely, (i) imposition of fine in lieu of confiscation and (ii) direction to re-export can co-exist. Ultimately in paragraph 49 he rejects the request for release of 11.5 MTs of Lithopone and re-export of 10 MTs of Tetracycline. Thereafter in paragraph 50 he orders confiscation of the whole consignment containing 10 MTs of Tetracycline and 11.5 MTs of Lithopone under Section 111(d) and (m) of the Customs Act, 1962 read with Section 119 and Section 3 of the Foreign Trade Development & Regulation Act. An option to redeem the confiscated goods was then granted on payment of a fine of Rs. 30 lakhs in lieu of confiscation. Thereafter he observed that the importer may re-export the goods after redemption or take out the goods for home consumption. The above observation cannot be treated as an option given to the importer to re-export. No provision of law has b....