TaxTMI 
TaxTMI 
2024 (4) TMI 637
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....September 2019 claimed then for exemption, of 59 bags containing 2950 kgs of 'black pepper', valued at Rs. 17,08,541 and recovered at the premises of M/s Eskimo Ice Mfg Co Pvt Ltd, alleged to be remnant of 300 bags imported by M/s Bruno Exports against scrips issued under 'advance authorisation scheme' in bill of entry no. 7930429/17.06.2021 and acquired by M/s Ashwin Traders in breach of conditions of import in said notification claimed for clearance without payment of duty which were allowed to be redeemed on payment of fine of Rs. 15,00,000 solely for re-export, confiscation of 12050 kg of 'black pepper' which allegedly was part of the 300 bags imported by M/s Bruno Exports against scrips issued under 'advance authorisation scheme' in bill of entry no. 7930429/17.06.2021 but not available physically and penalty of Rs. 6,00,000 imposed on the individual appellant here, among several individuals and entities, under section 112 of Customs Act, 1962. 2. The case against these entities and persons had its genesis in import of 13.5 metric tons against bill of entry no. 9926071/11.12.2020 and of 13 metric tons against bill of entry no. 7930429/17.06.2020 of 'black pepper' from Vie....
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....tion to the goods procured from M/s Bruno Exports, the appellants were in the know of these being entailed with condition of 'actual use' justifying imposition of penalty consequent upon admitted liability to confiscation. 5. From '9. The OA on request for cross-examination of witnesses, observed that, the appellant inter-aiia accepted that he has purchased 300 Bags (15MT) of Black Pepper from Shri Nilesh which has been stored as per his advice at M/s Eskimo Ice Mfg. Co. Pvt. Ltd. The copy of Bill of Entry that the goods under B/E No. 7930429 dated 16.06.2020, shows that the said goods are imported under DEEC Scheme. Thus, it is clear that the appellant was aware that the goods were imported duty free and the same goods were purchased by him from Shri Nilesh and the storage receipt issued in the name of M/s Ashwin Traders reflecting 300 bags of Black Pepper clearly establishes the fact. These facts have been established by the department on the basis of documents recovered during the search of the premises of M/s Eskimo Ice Mfg. Co. Pvt. Ltd. and as per statement of the appellant. The appellant further accepted purchasing of 15MT of Black Pepper from Shri Nilesh at admitted less....
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....mpugned goods by way of paying less for the said purchase than the market value. Thus the OA rightly hold that 59 bags of 50 kgs each of Black Pepper stored in the name of the appellant and seized at the storage facility of M/s Eskimo Ice Mfg. Co. Pvt. Ltd. were in fact part of the consignment of 15 MT in 300 bags imported and cleared under Ex-Bond WH B/E No. 7930429 dated 17.06.2020 in name of the importer M/s Bruno Exports and hence are liable to confiscation under Section 111 (m) & (o) of the Customs Act, 1962.' in the impugned order, we find that the contention of unreliability of testatory evidence, in the absence of cross-examination, had not been accepted by the first appellate authority. We find that the upholding of imposing of condition that confiscated goods be re-exported upon exercise of option of redemption is contrary to the decision of the Tribunal in Pace India v. Commissioner of Customs, Bangalore [2020 (372) ELT 442 (Tri- Bang)] which held that '5.1. After considering the submissions of both the parties and perusal of the material on record, we find that the order of re-export of the goods on payment of redemption fine within 30 days and if not complied with, ....
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....d do examine 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 UOI v. Kirloskar Pneumatics Company - 1996 (84) E.L.T. 401 (S.C.) in which it was held 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 Section 27 which inter alia includes the period of limitation mentioned therein. 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 cases the period of limitation would be three years. Learned Counsel refers to certain decisions of this Court to that effect. We shall assume for the purposes of this appeal that it is so, notwithstanding the fact that the said question is now pending before a larger Constitution Bench of nine Judges along with the issue relating to unjust enrichment. Yet the question is whether it is permissible for the High Court to direct ....
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....ion 125 of the Customs Act reads as follows : "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 for, 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, 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 goods confiscated, less in the case of imported goods the duty chargeable thereon. (2) where any fine in lieu of confiscation of goods is imposed under sub-section (1) the owner of such goods or the person referred to in sub-section (1) shall, in addition, be liable to any duty and charges payable in respect of such goods." 10. A plain reading of the above section shows that it does not confer upon the Authority passing the Ord....