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TaxTMI 
TaxTMI 
2019 (11) TMI 302
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....stoms Private Bonded Warehouse License No.1/98 issued by the Asst. Commissioner, Hyderabad-D Division. They are engaged in manufacture of plain particle board and melamine finished particle boards. They imported base paper for impregnation without payment of Customs Duty and warehoused it in the Customs private bonded warehouse situated inside their factory premises. As per the procedure when the goods have to be cleared the respondent has to file Ex-bond bill of entry with the Jurisdictional Central Excise Range Officer, pay appropriate customs duty and take the goods out from the warehouse and utilize in the manufacture of the final products. 3. The officers of Anti-Evasion Section, Hyderabad-I Commissionerate visited the factory on 16....
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....SCN the assessee has, interalia, submitted that the 509 reels of base paper have been taken out of the bonded warehouse but they are available in the factory premises. Therefore, it is wrong for the original authority to state that they were not available. Further, in his statement Shri Shiv Kumar Mishra, Dy. General Manager of assessee has also confirmed that the base paper was available in their factory premises. This fact was further reiterated by Shri Shiv Kumar Mishra and Shri K.V. Rama Raju, who appeared for personal hearing before the Commissioner. Clearly, this finding of the Commissioner was factually incorrect. Consequently, dropping of confiscation proposal based on this incorrect finding is incorrect too. b) Even otherw....
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....cation and the Commissioner has erred in holding that they were not available for confiscation in his order. Therefore, the matter may be remanded to the original authority for deciding on the confiscation of the goods. 5. Learned counsel for the respondent, on the other hand, submits that no redemption fine can be imposed when the goods are not available for confiscation at all. He would argue that section 125 pre-supposes that the goods are confiscated and are available with the department and on payment of redemption fine the assessee can redeem the goods. Where the goods are not available for confiscation there is no question of their redemption. Further, he would submit that section 125 is only an option given to the assessee for re....
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..... We find that there is an inherent contradiction and ambiguity in the impugned order itself. The impugned order was passed on 10.08.2011. In para 13 (iii) of the order, learned Commissioner has recorded that assessee has stated, even during the personal hearing, that the goods were available in the factory premises. Relevant portion is as below: "(iii) Because of repairs to the shutter of bonded premises, they had to keep the 509 reams of bases paper outside the bonded premises, though they were kept within the factory premises. Reference in this regard is drawn to the answer given to question no 4 during the course of recording of statement of Sri Shiv Kumar Mishra, DGM (Personnel) of the Unit under section 14 of the Central Exci....
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....of the Customs Act, as proposed in the show cause notice, in the instant case it is seen that the goods have not been seized. In fact, the goods are not available at all for confiscation. In these circumstances, the question of confiscation does not arise. In this regard, it would be pertinent to refer to the decision of the Hon'ble High Court of Bombay in the case of CC (Import), Mumbai Vs Finesse Creation INC [2009 (248) ELT 122 (Bom)], which was upheld by the Hon'ble Apex Court [2010 (255) ELT A120 (SC)], the relevant portion of which is reproduced as hereunder:" 8. There is an inherent contradiction between the two findings. Para 13 records that the assessee was asserting that they were very much available. In Para 17, learned Commis....