2019 (5) TMI 1362

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....M/s Vivilon Textile Industries Pvt. Ltd. (Appellant No. 1)), Shri Harish Bulchandani, Director of M/s Vivilon Textiles (Appellant No. 2) and M/s Confidence Export Pvt. Ltd. (Appellant No.3). In the impugned order, the Learned adjudicating authority has confirmed Customs duty demand of Rs. 37,65,791/- and ordered for its recovery from the Appellant No. 1 under Section 72 of the Customs Act, 1962 read with sub-section (1) of Section 28 of the said Act. The impugned order has also held that POY valued at Rs. 65,53,677/- is liable for confiscation under Section 111(o) of the Act for violation of the conditions of Notification No. 53/97- Cus., and since the goods were not available for confiscation, it has imposed redemption fine of Rs. 20,00,00....

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....ported by it. The charges levelled in the SCN was that, in view of diversion of the PTY in the DTA, POY used in the manufacture of said PTY in not entitled to the exemption provided under the Notification No. 53/97-Cus., dated 03.06.1997 inasmuch as the final products (PTY) were neither exported nor delivered to EOUs by way of deemed export and the Appellant No. 1 had contravened the post import condition of the said notification. The matter arising out of the SCN dated 23.06.2008 was adjudicated vide the impugned order dated 30.07.2010, wherein the adjudged demands were confirmed against the appellants. 3. The Learned Advocate appearing for the Appellants submitted that since the duty demand has been confirmed on the above referred EOUs ....

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....o support the stand that the entire duty demand is beyond the period of 5 years and as such, the same cannot be sustained. With regard to confiscation of goods and imposition of redemption fine, the Learned Advocate submitted that since the goods were already cleared and used in the manufacture of finished goods, fine cannot be imposed in respect of such goods. In this context, he has relied on the judgment of Hon'ble Bombay High Court, in the case of Commissioner of Customs (Import), Mumbai vs. Finesse Creation Inc.- 2009 (248) ELT 122 (Bom.), affirmed by the Hon'ble Supreme Court, reported in 2010 (255) ELT A 120 (S.C.). 4. On the other hand, the Learned AR appearing for the Revenue has reiterated the findings recorded in the impugned o....

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....e case of Sarla Polysters Ltd. (Supra), this Tribunal by following its earlier order in the case of Sanjari Twisters (supra) has held that the demand on raw material cannot be sustained in view of duty demand being confirmed on the final products cleared clandestinely. In other words, once duty has been demanded on the finished goods cleared in DTA, no duty demand can be made on the raw material. 6.1 As regard confiscation of POY, we are of the view that the same is not liable for confiscation, since the conditions of the notification dated 03.06.1997 has not been contravened. Material available in the case record proves the fact that the POY were used for the intended purpose and there was no contravention of post import condition. Even ....