Custom, Excise & Service Tax Tribunal
M/S. Bathel Exim International Pvt. Ltd vs Commissioner Of Customs, Tuticorin on 6 January, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
Appeal No. C/42521/2014
(Arising out of Order-in-Appeal No.94/2014-TTN (CUS) dated 22.8.2014 passed by the Commissioner of Central Excise (Appeals), Trichy)
M/s. Bathel Exim International Pvt. Ltd. Appellant
Vs.
Commissioner of Customs, Tuticorin Respondent
Appearance Shri Hari Radhakrishnan, Advocate for the Appellant Shri R. Subramanian, AC (AR) for the Respondent CORAM Honble Shri D.N. Panda, Judicial Member Date of Hearing / Decision: 06.01.2016 Final Order No. 40036 / 2016 Seizure of the silver oak wood is undeniable. The seizure resulted in confiscation holding that to be prohibited goods. However, learned adjudicating authority has allowed re-export of the said goods on payment of redemption fine of Rs. One lakh. He has also imposed penalty of Rs. One lakhs under section 112(a)(i) of Customs Act, 1962. But prayer of learned counsel is that re-export having been ordered by the adjudicating authority the appellant shall do the same within the time that may be stipulated by the Tribunal upon adjudication of the appeal.
2. So far as redemption fine is concerned, learned counsel submits that when re-export is allowed there should not be redemption fine following the decision of the Apex Court in the case of Siemens Limited Vs. Collector of Customs 1999 (113) ELT 776 (SC).
3. In respect of the penalty, the argument of the appellant is that section 112(a)(i) of Customs Act, 1962 imposes penalty in the case of goods which are prohibited in nature. When the goods are re-exported, such penalty is not imposable.
4. Revenue supports the adjudication.
5. Heard both sides and perused the records.
6. Law is well settled by Apex Court in the case of Collector of Customs, Bombay Vs. Elephanta Oil and Industries Ltd. 2003 (152) ELT 257 (SC) that merely because permission was granted to the assessee to re-export the same would not mean sub-clause (a) of Section 112 of the Customs Act, 1962 would not stand attracted. It was further held that Section112 of the Customs Act is different from the confiscation of the goods under section 125 of the Customs Act, 1962. The Apex court further pointed out that the facility to re-export does not, in any manner, take the case out of purview of section 125 to levy redemption fine. The ratio laid down by the Apex Court was followed by the Honble High Court of Madras in the case of Chennai Marine Trading (P) Ltd. Vs. Commissioner of Customs (Seaport Import), Chennai 2014 (304) ELT 354 (Mad.). While deciding the case of Chennai Marine Trading (P) Ltd. (supra), the Honble High Court of Madras has also very distinctly pointed out in para 22 of its judgment that the decision relied in Siemens Ltd. (supra) was on the facts found therein. But that does not speak that prohibited goods were to be redeemed for export without payment of reduction fine and section 125 fails to apply. According to the judgment of the Honble High Court of Madras, section 125 of Customs Act does not call for proposition of law that on the re-export of goods, there could be no redemption fine and duty leviable.
7. Following the ratio laid down by Apex Court and followed by Honble High Court of Madras, it would be proper to direct the appellant to deposit Rs.50,000/- (Rupees fifty thousand only) towards redemption fine and entires amount of penalty and make prayer for re-export since mis-declaration surfaced on record. Such misdeclaration required the public exchequer to incur cost seeking report from the forest department. Mis-declaration being found to be deliberate, imposition of penalty of Rs. One lakh is uninterfered.
9. In the result, appeal is partly allowed in the manner indicated above.
(Dictated and pronounced in open court) (D.N. Panda) Judicial Member Rex 3