Page 226 - ELT_15th August 2020_Vol 373_Part 4

560 EXCISE LAW TIMES [ Vol. 373

pre-trial disposal can also be undertaken. In this process, the sale proceed replac-
es the goods, which can be retained in full in case of absolute confiscation or in
part upto the amount of redemption fine if the goods are allowed to be redeemed
on payment of redemption fine. At the time of disposal of goods, even if it is dur-
ing the process of appeal, the legal obligation of payment of Redemption fine,
Customs duties and other charges, as per Section 125 of the Customs Act, 1962,
on the importer cannot be waived. Thus, non-availability of goods at the time of
order-in-appeal cannot be a valid ground for setting aside the payment of Re-
demption fine and Customs duty leviable on the goods.
3. During the course of arguments, the Learned Departmental Repre-
sentative on behalf of the revenue has placed reliance on this Tribunal’s decision
in the case of Collector of Customs & Central Excise, Chandigarh v. Essma Woollen
Mills (P) Ltd. [1994 (74) E.L.T. 588 (Tribunal)] The relevant extract from the order
is reproduced below :-
“4. I have considered the submissions made by both the sides and gone
through the circumstances of the case. Merely because respondent did not
exercise the option to redeem the goods within the stipulated period in or-
der-in-original would not mean that they have abandoned their claim on
goods particularly when it has come out that they had, in the meantime,
filed the appeal to Collector (Appeals) against this order. In appeal memo
the Revenue have submitted that appeal filed by the respondents should
have been rejected in view of the fact that it was incumbent upon the re-
spondent to intimate the department that it had gone in appeal and the op-
tion to redeem the goods was not being exercised till the disposal of the ap-
peal. Merely because the respondents did not intimate the fact of going into
appeal in regard to the goods confiscated would not have the effect of vest-
ing these goods in the Govt., particularly when the order of the Asstt. Col-
lector was subject matter of the appeal. It is held by the Tribunal in the case
of Collector (Customs) Madras v. Shri T.D. Adiyapatham - 1988 (33) E.L.T. 514
that if the confiscated goods have been disposed of during pendency of the
appeal, the Department is liable for payment of sale proceeds after deduct-
ing the amount of redemption fine. I do not find any merit in the conten-
tions that sale proceeds of the goods should be vested with the Govern-
ment. In fact the respondent had a right to receive the goods after paying
the redemption fine and penalty as adjudged by the Collector (Appeals).
Having been deprived of that right, they could not be subjected to further
burden by way of deprivation even of sale proceeds of these goods. Once
they pay redemption fine and penalty as adjudged in appeal, they are justi-
fied in claiming the sale proceeds of the goods sold through auction”.
4. Accordingly, Learned Departmental Representative has claimed that
the redemption fine has to be deducted along with the penalty for remitting the
sale proceeds to the respondent.
5. However, per Contra the Learned Counsel appearing on behalf of the
respondent has argued that once the goods are not available for redemption, the
redemption fine cannot be deducted from the sale proceeds. He has placed reli-
ance on the Tribunal’s order in their own case reported at 2017 (358) E.L.T. 1113
(Tri. - Del.) wherein the Hon’ble Bench has observed as under :-

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