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Issues involved: Interpretation of duty payment u/s 125(2) of Customs Act upon setting aside duty confirmed u/s 128A but upholding confiscation and penalty.
In the present appeal, the issue revolves around whether the duty confirmed under Section 128A is set aside by the Commissioner (Appeals), while the order of confiscation and penalty is upheld, whether the appellant is required to pay the duty in terms of Section 125(2) of the Customs Act when exercising the option to redeem the goods. The learned advocate concedes that duty is indeed required to be paid u/s 125(2) at the time of opting to redeem the goods. However, he argues that the applicable duty rate should be as of the date of passing the Original Order of Adjudication (OIO) when confiscation was upheld and the option to redeem the goods was granted, despite the goods being provisionally released earlier. He cites a Tribunal decision in the case of M/s. Ravi Sizers v. CC Ahmedabad, where it was held that the duty paid at the time of provisional release is considered a deposit, and the date of the OIO appropriating the amount paid is deemed the date of duty payment. The advocate asserts that the duty liability should be assessed based on the correct value and rate as of the OIO date, following the above precedent. Consequently, the impugned order is set aside, and the matter is remanded to the original adjudicating authority to determine the appellant's duty liability based on the accurate value and rate as of the OIO date. The appeal is disposed of accordingly.
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