Bombay High Court
Graphite India Ltd vs The Commissioner Of Customs(Export) ... on 21 November, 2018
Author: M.S.Sanklecha
Bench: Akil Kureshi, M.S.Sanklecha
cuapp-43-2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CUSTOMS APPEAL NO. 43 OF 2018
Graphite India Ltd., .. Appellant.
v/s.
The Commissioner of Customs
(Export) & Others .. Respondents.
Mr. Mayank Jain i/b. Khaitan & Co., for the Appellant.
Mr. Pradeep S. Jetly, for the Respondents.
CORAM: AKIL KURESHI &
M.S.SANKLECHA, JJ.
DATE : 21st NOVEMBER, 2018. P.C:-
This Appeal under Section 130 of the Central Excise Act, 1944 (the Act), challenges the order dated 12 th October, 2017 passed by the Customs Excise and Service Tax Appellate Tribunal, (the Tribunal).
2 Appeal admitted on the following re-framed substantial question of law as urged by the Revenue:-
" Whether on the facts and circumstance of the case and in law the Tribunal was justified in imposing redemption fine when the goods are not available for confiscation ?"
3 At the request of the learned Counsel for the parties, the appeal is taken up for consideration at this stage itself.
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4 The impugned order of the Tribunal after having recorded a
finding that the goods are not available for confiscation, yet imposed the redemption fine under Section 125 of the Act. This very issue was a subject of consideration by this Court in Commissioner of Customs (Import) v/s. M/s. Finesse Creation Inc. (Central Excise Appeal No. 66 of 2009) dated 25th August, 2009 - wherein Court held that the concept of redemption fine arises only in the event the goods are available for confiscation. If the goods are not available for confiscation, then no confiscation can take place to give the option of redemption of the goods to the party under Section 125 of the Act. This Court further held that "the question of confiscating the goods would not arise if there are no goods available for confiscation nor consequently redemption. Once goods cannot be redeemed, no fine can be imposed.
5 It is clarified that in the facts of this case, the offending goods has not been released provisionally on execution of a bond. Therefore, the decision of the Apex Court in Weston Components Ltd., v/s. Commissioner of Customs 115 ELT 278 will have no application.
6 In the above view, substantial question, is answered in the negative i.e. in favour of the Appellant-Assessee and against the Respondent-Revenue.
7 Accordingly, Appeal allowed in the above terms.
(M.S.SANKLECHA,J.) (AKIL KURESHI,J.)
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