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2020 ] KESHLATA CANCER HOSPITAL PVT. LTD. v. COMMR. OF CUS. (IMPORT), MUMBAI 91

sentative countered this plea for absence of liability to be subjected to recovery
by drawing attention to the decision of the Hon’ble High Court of Bombay in
Bombay Hospital Trust v. Commissioner of Customs (ACC), Mumbai [2006 (201)
E.L.T. 555 (Bom.)] to the effect that duty is liable to be recovered under Section
125(2) of Customs Act, 1962 on imposition of fine in lieu of confiscation and not
on payment of said redemption fine. That interpretation has since been overruled
by the Hon’ble Supreme Court in Fortis Hospital Ltd. v. Commissioner of Customs,
Import [2015 (318) E.L.T. 551 (S.C.)] by holding that
‘13. It is not in dispute that show cause notice in the instant case was is-
sued under Section 124 of the Act. Once such a show cause notice was is-
sued and as can be seen from the proposed action which was contemplated
in this provision (as has been taken note of above), it was also confined to
confiscation of the imported machinery and imposition of penalty. Nothing
was stated about the payment of duty. However, in spite of the fact that
show cause notice was limited to confiscation of the goods and imposition
of penalty, the final order which was passed included the direction to pay
the customs duty as well. It is clear that when such an action was not con-
templated, which even otherwise could not be done while exercising the
powers under Section 124 of the Act, in the final order there could not have
been direction to pay the duty.
14. Notwithstanding the aforesaid position, as pointed out above, the De-
partment is taking shelter under the provisions of sub-section (2) of Section
125 of the Act. However, on a plain reading of the said provision, we are of
the view that such a provision would not apply in case where option to pay
fine in lieu of confiscation is not exercised by the importer. Trigger point is
the exercise of a positive option to pay the fine and redeem the confiscated
goods. Only when this contingency is met, the duty becomes payable. In
the present case, admittedly, such an option was not exercised and the con-
fiscated machinery was not redeemed by the Institute. As a matter of fact,
thus, no fine has been paid.
x x x x
16. Indubitably, unless an option is exercised, fine does not become paya-
ble. Sub-section (2) of Section 125 uses the expression “imposed” by stating
“where any fine in lieu of confiscation of goods is imposed”. In Black law
dictionary (Tenth edition), the word ‘impose’ is defined as “To levy or exact
(a tax or duty)”. Thus, it has to be a levy or exact which is become payable
and has to be paid. Likewise, the word ‘impose’ is defined by Oxford Eng-
lish Dictionary, as relevant for the purpose of the present case, as “Lay or
inflict (a tax, duty, charge, obligation, etc.) (on or upon), esp. forcibly; com-
pel compliance with; force (oneself) on or upon the attention etc. of.”
17. In view of the above, we cannot agree with the submission of Mr. Ra-
dhakrishnan that fine been “imposed” in the present case. The stipulation
contained in the adjudicating order was only contingent in nature which
contingency would have arisen only on exercising the option by the im-
porter to pay fine in lieu of confiscation and to redeem the goods.
18. As already mentioned above, Section 124 deals with confiscation of
goods and penalty and does not deal with payment of import duty. No
doubt, such a payment of import duty becomes payable by virtue of sub-
section (2) of Section 125 but only when condition stipulated in the said
provision is fulfilled, namely, fine is paid in lieu of confiscation of goods.
When the Department chose to take action under Section 124 of the Act, it
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