2023 (5) TMI 347

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....3/2013. This order has been upheld by the Impugned order of commissioner appeals has held as follows: 1.2 Original authority has by this order no. 49/R/2012 dated 25/06/2012 held as follows. 2.1 In the appeal revenue has challenged the order of commissioner appeal stating as follows: 'i)The main ground on which Commissioner (A) has set aside the OIO is that Deputy Commissioner is not competent authority to decide this case as it involves seizure and confiscation/ release of the goods. However, this ground of the OIA is incorrect since initially the Show Cause Notice for confiscation/ release of the goods was adjudicated by Commissioner vide his OIO 121/94 dated 30/8/19 94 by dropping the proceedings which were set aside by Hon&#....

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.... iii)As regards refund of monetary proceeds of 194,250 kg of silver instead of returning physical quantity of silver, this has been done as per the departmental instructions and practice. Silver was seized in 1993 and the disposal of the same was done by Customs Disposal Unit in Mumbai in 2004 as there was no operative stay against such disposal. The entire monetary proceeds of that disposal has been refunded to the assessee. The fact that the price of silver in the market has gone up subsequently is out of control of the department as the fluctuations in the price of silver is a matter of speculation and cannot be known in advance. It was equally likely that the price might have fallen also and in that case also, department would hav....

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....ized silver pieces under Section 111(d) and imposition of penalty under Section 112(b) of the Customs Act on the appellant had been rightly ordered by the Commissioner.... However, if the confiscated silver pieces are not available on account of sale, the redemption fine will be liable to be deducted from the sale proceeds, before handling over those proceeds to the appellant...." The above decisions have also been considered by the Deputy Commissioner, Central Excise & Customs, Jalgaon in his 0-1-0 dtd. 25/06/2012. In view of the facts discussed hereinabove, the order-in- Appeal No. RPS/78/NSK/2013 dtd. 16/03/2013 passed by the Commissioner (Appeals), Central Excise & Customs, Nashik does not appear to be legal, correct a....

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....stant Commissioner who could have consider the appeal for refund and decided. The findings recorded in impugned order are as follows: a) I have examined the case in the light of grounds of appeal of the appellant and other relevant facts. One of the grounds of appeal of the appellant is that the Deputy Commissioner, Central Excise & Customs, Jalgaon Dn. is not competent to issue the OIO as the power to release the goods as per money value of such goods vested only with the officer who is competent to adjudicate the case or any other authority higher to such officer. They have also raised a point that no show cause notice was issued to them asking them why money value in lieu of release of goods should not be paid to them and no opp....