Customs, Excise and Gold Tribunal - Bangalore
Cuddapah Spinning Mills Ltd. vs The Commissioner Of Customs on 17 October, 2007
Equivalent citations: 2008(125)ECC146, 2008(151)ECR146(TRI.-BANGALORE)
ORDER S.L. Peeran, Member (J)
1. This appeal arises from OIO No. 15/05 Adjn. Cus denovo dated 29.4.04 by which the Commissioner of Customs has ordered for confiscation of machinery valued at Rs. 86,70,648/- and has fixed a redemption fine of Rs 2 lakhs. The appellant's contention is that the show cause notice dated 10.12.1999 does not propose to confiscate the machinery and in para 17, it only proposed to impose penalty under Section 112 (a)(b) of the Customs Act. As there was no proposal to confiscate the machinery in the show cause notice, therefore, the order of confiscation and imposition of fine is not justified.
2. Learned DR points out to para 15 (ii) of the show cause notice wherein M/s ASL was asked to show cause as to why the goods should not be seized and confiscated.
3. Learned Counsel submits that the proposal was made to the importer M/s ASL, who had sold the goods to the appellant namely M/s Cuddapah Spinning Mills from whom goods have been confiscated. She submits that in the case of Trilux Electric Pvt. Ltd., v. CC Bangalore 2006 (205) ELT 1184 (Tri-Bang, the Tribunal has clearly held that confiscation is not sustainable in the absence of notice to the appellants who are owners of the goods. Therefore, the order of confiscation and penalty has been set aside. In that case the Tribunal has relied on the judgments of Chiranika International v. Commissioner and on the Apex Court judgments rendered in the case of Collector v. Decent Dyeing Co. wherein it was held that the goods purchased in the market are presumed to be duty paid.
4. We have carefully considered the submissions and perused the show cause notice. It is true that para 15 (ii) of the show cause notice proposed to M/s ASL to confiscate the machinery who had already sold the machinery to the appellants i.e. M/s Cuddapah Spinning Mills who are the owners. The show cause notice in para 17 has proposed to impose penalty on the appellants i.e. M/s Cuddapah Spinning Mills. In terms of the judgment in the case of M/s Trilux Electric Company Pvt. Ltd., (supra) wherein it has been clearly held that notice has to be issued to the party who is the owner of the goods and proposal to confiscate has to be made in the show cause and if the same has not been done then the confiscation from the owner's premises is not justified In view of these citations, argument taken by the appellant that there is no proposal to confiscate the machinery which were in appellants possession in the show cause notice and therefore, the order confiscation is not sustainable is to be upheld.
5. Following the ratio of the cited judgments, appeal is allowed.
(Pronounced and dictated in open court)