2010 (6) TMI 223 - AT - Central Excise

Confiscation and Redemption Fine - The present appeal stands filed by the Revenue against that part of the impugned order of Commissioner (Appeals) vide which he has set aside the redemption fine of Rs. 2.50 Lakhs, imposed by the Original Adjudicating Authority, by confiscating the short found goods, on the ground that in the absence of physical availability of the goods, these could not be confiscated and redemption fine could not be imposed. Held that- bond entered by 100% EOU at time of import not to be equated to bond for provisional release of seized goods in wich case redemption fine imposable even if goods were provisionally released. No seizure in instant case therefore confiscation cannot be ordered.

Issues:
1. Shortage of raw material found in the factory premises of the appellant.
2. Duty demand and penalties imposed by the Original Adjudicating Authority.
3. Appeal against the duty demand upheld by Commissioner (Appeals).
4. Dispute over the redemption fine imposed by the Original Adjudicating Authority.
5. Interpretation of the Larger Bench decision regarding confiscation and redemption fine.
6. Comparison between 100% EOU bond and bond for provisional release of seized goods.
7. Revenue's appeal against the decision of setting aside the redemption fine.

Analysis:
1. The case involved a 100% EOU engaged in manufacturing various textile products. During a preventive check, a significant shortage of raw material was discovered, which had been cleared without payment of duty and without issuing invoices to unknown parties. The director of the company admitted to the offense during the investigation.

2. Subsequently, proceedings were initiated, leading to the confirmation of duty demands and imposition of penalties by the Original Adjudicating Authority. The Commissioner (Appeals) upheld the duty demand but set aside the redemption fine imposed by the Original Adjudicating Authority.

3. The Revenue filed an appeal against the decision of the Commissioner (Appeals) regarding the redemption fine. The dispute centered around the physical availability of the goods for confiscation and the imposition of redemption fine in lieu of confiscation.

4. The Commissioner (Appeals) relied on a Larger Bench decision, which emphasized that goods could not be confiscated in the absence of physical availability, except when allowed to be cleared on execution of a bond. The decision differentiated between a 100% EOU bond and a bond for provisional release of seized goods.

5. The Revenue reiterated their grounds in the appeal, arguing that the bond executed by the 100% EOU could not be equated to a bond for provisional release of seized goods, hence the redemption fine could not be imposed in this case. The absence of seizure led to the rejection of the appeal filed by the Revenue.

6. The judgment highlighted the importance of physical availability of goods for confiscation and the specific conditions under which redemption fines could be imposed. The interpretation of the Larger Bench decision played a crucial role in determining the outcome of the case, emphasizing the legal distinction between different types of bonds in such situations.

7. Ultimately, the appeal filed by the Revenue was rejected based on the findings related to the bond executed by the 100% EOU, the absence of seizure, and the legal principles outlined in the Larger Bench decision, which guided the decision-making process in this case.

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