Page 254 - ELT_1st September 2020_Vol 373_Part 5

692 EXCISE LAW TIMES [ Vol. 373

5. In view of the above submission of the Learned Advocate, we dis-
miss the appeals as not maintainable. Stay Petitions and Miscellaneous applica-
tions also get disposed of.
(Dictated and pronounced in open Court)
_______

2020 (373) E.L.T. 692 (Tri. - Hyd.)
IN THE CESTAT, REGIONAL BENCH, HYDERABAD
[COURT NO. I]
Shri P.V. Subba Rao, Member (T) and Ms. Rachna Gupta, Member (J)
COMMR OF CUS., C. EX. & S.T., HYDERABAD-II
Versus
G.M.K. PRODUCTS PVT. LTD.
Final Order No. A/30009/2020, dated 20-1-2020 in Appeal No. C/64/2010
Confiscation of exported goods - Misdeclaration and misclassification
of exported goods, allegation of - Revenue claiming issuance of duplicate set
of invoices one for Customs and other for overseas customers giving different
descriptions - HELD : Declaration of goods in particular manner in export doc-
uments and clearance of goods by Department Officers after assessment and
examination, undisputed - As per description given in documents, DEPB
schedule under which assessee claimed credit, matched - Nothing on the rec-
ord to show that duplicate set of invoices prepared for overseas importers pre-
sented before Customs officers - No findings provided by First Appellate Au-
thority on fact that documents including duplicate set of invoices unearthed
only upon subsequent investigations by DRI - Fit case to be remanded to First
Appellate Authority with direction to give specific finding with regard to mis-
declaration of goods by way of duplicate set of invoices - Section 113 of Cus-
toms Act, 1962. [para 8]
Confiscation of exported goods - Non-availability of goods viz. Cylin-
der liners/sleeves, cast iron castings - HELD : Term used in Section 113 of Cus-
toms Act, 1962, to be export goods and not exported goods - Only export goods,
i.e., goods to be exported could be confiscated - No provision to confiscate
goods already been exported - If goods are confiscated, title of goods passes to
Government of India and instead of taking over goods, person from whom
goods seized can be given option to pay fine in lieu of confiscation and take
goods - Option to party under Section 125 of Customs Act, 1962, not obligation
or penalty - Person may not choose option and allow goods to be confiscated
and goods will be confiscated and sold by department - Therefore, First Appel-
late Authority correct in setting aside confiscation of goods - Section 113 of
Customs Act, 1962. [para 8]
Penalty and redemption fine - Misdeclaration and misclassification of
exported goods - Penalty under Section 114 of Customs Act, 1962 dependent
upon goods being held liable for confiscation under Section 113 ibid - No pro-
vision to confiscate goods already exported, hence goods can not be confiscat-
ed - Therefore, penalty also does not sustain and question of order imposing

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