Page 225 - ELT_15th August 2020_Vol 373_Part 4

2020 ] COMMISSIONER OF CUSTOMS (ICD, TKD), NEW DELHI v. ORIENTAL TRIMEX LTD. 559

Adjudicating authority vide order-in-original dated 26-11-2012 ordered for con-
fiscation of the impugned goods in 16 containers under Section 111(d) of the Cus-
toms Act, 1962 with an option to redeem the goods on payment of redemption
fine of Rs. 20,00,000/- under Section 125 of the Customs Act, 1962 and imposed a
penalty of Rs. 10,00,000/- under Section 112 of the Customs Act, 1962 on the im-
porter feeling aggrieved, the importer filed an appeal before the Commissioner
(Appeals). However, during the pendency of the appeal the goods were got auc-
tioned by the department. The Commissioner (Appeals) held that the imported
goods required an import licence as same are in the category of restricted goods,
in terms of EXIM policy at the relevant time of import. Since, the importer - ap-
pellant failed to furnish a valid import licence the Commissioner (Appeals) held
that the goods were liable for confiscation under Section 111(d) of the Customs
Act. As it is a matter of fact that the subject consignment of imported marble re-
quired a specific import licence for its valid importation as per the provisions of
import - export policy and the importer - appellant failed to produce such specif-
ic licence for valid importation. The order of confiscation of the imported goods
cannot be faulted with. The redemption fine and penalty were imposed in view
of the facts and circumstances of the present case. However, as the imported
goods had already been disposed of by the Department during the pendency of
appeal and without waiting for outcome of the appeal/legal remedies by the
owner of the goods, as such the goods are no longer available and thus the same
cannot be redeemed by the importer-importer on payment of fine. Consequently,
there is no question of payment of redemption fine as well as Customs duties
when goods cannot be released for home consumption. Therefore, the importer
will be entitled to receive the part of sale proceeds received by the Customs at
the time of auction of the imported goods, subject to the Rules and regulation in
this regard and thus, importer has a valid claim from the Department on the sale
proceeds of the auctioned goods. The penalty imposed to the extent of Rs,
10,00,000/- is legally valid as goods were liable for confiscation and penalty im-
posable. Accordingly, the Commissioner (Appeals) set aside the order of pay-
ment of redemption fine of Rs. 20,00,000/- and also held that the penalty im-
posed to the extent of Rs. 10,00,000/- may be deducted out of the sale proceeds
and the importer be paid back the sale proceeds as due. The relevant operating
portion of the impugned order-in-appeal is reproduced as under :-
“I find that the appellant had not exercised their option of payment of RF
and redeeming the goods after the outcome of the appeal before the Com-
missioner of Customs (Appeals), New Delhi and therefore, they cannot be
compelled to pay the RF when they have no option left with them to re-
deem the goods. The redemption fine was required to be paid when the
goods are redeemed by the importer but in this case, the goods have been
confiscated and auctioned by the Department; there was no question of
charging redemption fine from the importers.”
2. Now the revenue is in appeal before us on the ground that Commis-
sioner (Appeals) has clearly erred in holding that there is no question of payment
of redemption fine while he has upheld the confiscation of the imported goods.
The ground that the imported goods have already been disposed off during the
pendency of appeal has no relevance to the payment of Redemption Fine. The
seized goods are disposed off as per the disposal process and many a times

EXCISE LAW TIMES  15th August 2020  225