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with this principle, Hon’ble Andhra Pradesh High Court in E. Vittal v. Appropri-
ate Authority [1996] 221 ITR 760 (AP), held that :
“16.....where a decision is based upon a document in a proceeding, copy of
the same should be provided to the affected party. Otherwise, it would vio-
late the principles of natural justice as the opportunity of being heard should
be an effective opportunity and not an empty formality.”
Therefore, from the perusal of the above-mentioned observations, it becomes
clear that SCN has to be issued with all the relied upon documents (commonly
referred to as “RUD”) for want of which, issuance of SCN would become an
empty formality. Moreover, importance of RUDs can also be understood from
the fact that it is a trite law that no SCN can be issued merely on assumptions
and presumptions without any tangible evidence [Oudh Sugar Mills Ltd. v. U.O.I.,
1978 (2) E.L.T. (J172)].
Option to pay fine in lieu of confiscation
Under Customs Act, 1962, option to redeem the confiscated goods on
payment of fine has been provided in Section 125 of the Act and the provisions
for the same are contained in Section 130 of the CGST Act, 2017. For the sake of
convenience, Section 125 of the Customs Act, 1962, and related provision of Sec-
tion 130 of the CGST Act, 2017 are reproduced below :
Section 125 of the Customs Act
“SECTION 125. Option to pay fine in lieu of confiscation. - (1) Whenev-
er 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 pro-
hibited 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 or, 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.”
From the perusal of above-mentioned provision, following points emerge very
clearly :
(1) As regards imposition of fine (redemption fine), Section 125 of the
Customs Act, 1962, states that in respect of prohibited goods, the
proper officer may grant option to redeem the goods, but, in the
case of non-prohibited goods, the officer has to grant (as he does not
have discretion) an option to redeem the goods on payment of fine
as imposed by him. [Refer - Commissioner of Customs (Preventive) v.
Uma Shankar Verma - 2000 (120) E.L.T. 322 (Cal.)].
Here, it must also be borne in mind that prohibition referred to in
Section 125 is an absolute prohibition. “That is to say, it relates to
goods which cannot be imported or exported. This would not be
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