2008 (11) TMI 134 - AT - Customs

Confiscation of goods draw back fraud - goods already exported were not available for seizure during the investigation - when the goods have already gone out of the country, the question of confiscation of the said goods does not arise - reasoning given by the Commissioner (A) in not confiscating the goods is valid - His finding that the goods were liable for confiscation was to enable him to impose penalties on the persons revenue s appeal is rejected

Summary

Issues:
- Appeal against Commissioner's Order regarding confiscation of goods and imposition of redemption fine.

Analysis:
1. Confiscation of Goods and Redemption Fine:
The appeal was against the Commissioner's Order, which did not confiscate the offending goods or impose a redemption fine. The Commissioner had ordered recovery of drawback claims, disallowed certain claims, and imposed penalties on parties involved in fraudulent exports. The department's grievance was that although the goods were held liable for confiscation, no direction was given to pay a fine in lieu of confiscation. However, the Tribunal found that the goods in question had already been exported, and therefore, were not available for seizure during the investigation. As per Section 125 of the Customs Act, once goods are confiscated, the officer adjudging it may give the owner an option to pay a fine in lieu of confiscation. The Tribunal noted that the Commissioner's decision not to confiscate the goods was valid, as the goods had already left the country, and the only option available to the department in such cases is to take over and dispose of the goods. The Commissioner's finding of goods being liable for confiscation was to enable the imposition of penalties on those involved, and the Tribunal upheld the decision, rejecting the department's appeal.

2. Provisions of the Customs Act:
The Tribunal referred to Section 125 of the Customs Act, which provides for the option to pay a fine in lieu of confiscation when goods are liable for confiscation. It highlighted that the fine imposed in such cases is an option for the party involved, and if the fine is not paid, the adjudicating authority can take possession of the goods for disposal. The Tribunal emphasized that the possession of confiscated goods must be taken over by the adjudicating authority, and the fine in lieu of confiscation is limited by the market price of the goods confiscated. By analyzing the provisions of the Customs Act, the Tribunal justified the Commissioner's decision not to confiscate the goods and upheld the validity of the reasoning provided.

In conclusion, the Tribunal upheld the Commissioner's decision regarding the confiscation of goods and the imposition of a redemption fine, citing the provisions of the Customs Act and the circumstances surrounding the case where the goods had already been exported. The appeal by the department was rejected, affirming the validity of the Commissioner's order.