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2017 (9) TMI 1454 - AT - CustomsAbsolute confiscation - prohibited goods - gold bars coming out of the SEZ - section 125 of CA, 1962 - option to pay redemption fine - Held that - even if the goods in question are considered as prohibited goods as defined under the Customs Act, the adjudicating authority may consider imposition of fine and need not invariably direct absolute confiscation of the goods. - In these premises, thus to consider the issue raised at the bar that whether the gold bars removed from the Unit in SEZ with out permission and contrary to the Circulars issued by RBI and Customs, became prohibited goods, or otherwise, in our view, becomes more an academic exercise and hence need not be resorted to. On the issue of considering the quantum of redemption fine imposed by the adjudicating authority, we find substance in the contention of the Revenue inasmuch as, wiping out of profit cannot always be the yardstick invariably in all the circumstances in fixing the quantum of fine; also in the present case there has been no data to support the finding that the margin of profit from such illicit transaction of removal of goods from the authorised SEZ operation to the local market would be 3 to 4% in the Respondent s case - quantum of redemption fine and penalty upheld. Appeal allowed.
Issues Involved:
1. Absolute confiscation of gold bars. 2. Quantum of redemption fine. 3. Appropriation of customs duty and interest. Issue-wise Detailed Analysis: 1. Absolute Confiscation of Gold Bars: The Revenue argued that the gold bars removed from the SEZ should be subjected to absolute confiscation as they are considered prohibited goods under the Customs Act, 1962. They cited the principle laid down by the Supreme Court in Om Prakash Bhatia Vs. C.C., Delhi and C.C.E. A.P. Vs. Suresh Jhunjhunwala, which states that non-compliance with any legal provision in relation to imported or exported goods renders them prohibited. The Revenue also referred to judgments from the Madras High Court in C.C.(Air), Chennai I Vs. Samynathan Murugesan and C.C.(Air), Chennai I Vs. P. Sinnasamy to support their stance that prohibited goods must be absolutely confiscated. The Respondent countered that the gold was imported for authorized operations in the SEZ and that mere violation of the exemption notification conditions does not warrant absolute confiscation, referencing Neyveli Lignite Corporation. They further argued that the adjudicating authority has discretion under Section 125 of the Customs Act to impose a fine instead of absolute confiscation, supported by judgments from the Bombay High Court in C.C.(AP), Mumbai Vs. Alfred Menezes and the Calcutta High Court in C.C. (Preventive) Vs. Uma Shankar Verma. The Tribunal concluded that even if the goods are considered prohibited, the adjudicating authority has the discretion to impose a fine instead of absolute confiscation, as per the principle laid down in Alfred Menezes. Therefore, the plea for absolute confiscation was not upheld. 2. Quantum of Redemption Fine: The Revenue contended that the fine imposed by the Commissioner was inadequate and should be commensurate with the gravity of the offense. They argued that the margin of profit should not be the sole criterion for determining the fine, especially in cases of smuggling. They cited the Supreme Court judgment in C.C.(Preventive), Mumbai Vs. M. Ambalal & Co. to support their argument. The Respondent argued that the fine should be based on the margin of profit, which they claimed was 3 to 4%. They also stated that they had already paid the duty and interest, and the penalty imposed on them and other noticees was also paid. The Tribunal found merit in the Revenue's contention that wiping out the profit margin cannot always be the sole criterion for determining the fine. They noted that there was no data to support the finding that the margin of profit was 3 to 4%. Considering the facts and circumstances, including the payment of duty, interest, and penalties by the Respondent, the Tribunal deemed it appropriate to enhance the redemption fine to ?40 lakhs. 3. Appropriation of Customs Duty and Interest: The Revenue disputed the quantum of duty and interest paid and appropriated by the adjudicating authority. They argued that the benefit of exemption Notification 12/2012-Cus should not have been allowed in computing the duty. The Respondent claimed that they had paid the duty at the tariff rate without availing of the concessional rate applicable to SEZ clearances. The Tribunal found no merit in the Revenue's contention, noting that the Revenue did not provide the correct amount of duty required after denying the exemption benefit. The Tribunal upheld the duty and interest appropriated by the adjudicating authority. Conclusion: The Tribunal modified the impugned order to enhance the redemption fine to ?40 lakhs while upholding the rest of the order, thereby disposing of the appeal accordingly.
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