Page 49 - ELT_1st June 2020_VOL 372_Part 5th

2020 ] CONFISCATION AND REDEMPTION OF CONFISCATED GOODS UNDER CGST A173

applicable in the case of goods import of which is permitted subject
to certain conditions or to certain category of persons (commonly
referred to as “Restricted Goods”) and are ordered to be confiscated
for the reasons that the conditions for import/export of the same
have not been complied with” [Yakub I Yusuf v. Commissioner of Cus-
toms (Gen.) New Delhi, 2003 (161) E.L.T. 360 at 361-362 (Tri.-Delhi)].
Moreover, such option has to be given to the owner of the goods be-
fore ordering the confiscation of the goods. [N. Jayathilakan v. Addi-
tional Secretary, 1987 (31) E.L.T. 47 at pp. 50-51 (Mad.)].
(2) The Redemption fine can in no case exceed the market value of the
confiscable goods less the amount of duties/tax chargeable thereon.
Here, it will be interesting to note the fact that though discretion has
been vested in the concerned Proper Officer for determination of
Redemption Fine, but, such discretion has to be exercised keeping
in mind the various factors that affect the margin of profit that the
importer is likely to garner when goods are restored to him on re-
demption. Thus, in practice it is not the maximum fine possible that
is to be levied but it is the quantum which would be sufficient to
neutralize the margin of profit [Commissioner of Customs, New Delhi
v. Reydertrac Exports, 1999 (106) E.L.T. 379 at p. 381 (Tribunal)]”.
Moreover, while determining the fine, the concerned officer has to
give out his reason for determining the figure of fine as in absence
of which it would be impossible to ascertain whether such officer
exercised his discretion according to law, rules of reason and justice
or not. [ibid] This discretion vested in the proper officer cannot be
exercised in arbitrary manner and has to be used in consistent man-
ner [Pioneer International v. CC, Mumbai, 1999 (107) E.L.T. 476 at p.
477 (Tribunal)].
(3) If the concerned proper officer allows redemption, he is duty bound
under law to determine the market price of the imported goods.
[Refer - Shah Trading Company v. Collector of Customs, Bombay - 1988
(33) E.L.T. 165 (Tri.)].
(4) Redemption fine paid by owner of the goods or any person referred
to in sub-section (1), shall be in addition to any tax, penalty or other
charges.
(5) Section 28 of the Customs Act, 1962, does not control Section 125 of
the Act ibid - Speaking on first proviso to Section 125(1) of the Cus-
toms Act, 1962, Hon’ble CESTAT Mumbai in Tata Infotech Ltd. v.
Commissioner of Customs [2000 (117) E.L.T. 252 (Tri.-Mum.)] held
that -
“Section 125 would appear to come to play in cases where notice
cannot be issued under Section 28 for the reason that there was no
documentation relating to details of imports of the goods. In that
event the provisions of Section 125(2) would be applicable i.e., in
cases where goods are ordered to be confiscated without the point
of their legal limitation having been established. Where such legal
importation is established, this provision will not apply for recov-
ery of short levy.”

EXCISE LAW TIMES  1st June 2020  49