2019 (8) TMI 1167 - AT - Central Excise

100% EOU - Illicit/Clandestine removal - confiscation of goods alongwith imposition of redemption fine could not take place due to non-availability of goods - HELD THAT - The ld. Commissioner (Appeals) did not confiscate the goods on the ground that the same was not available for confiscation, on the basis of judgments in the case of SHIV KRIPA ISPAT PVT. LTD. VERSUS COMMISSIONER OF C. EX. CUS., NASIK 2009 (1) TMI 124 - CESTAT MUMBAI , ASSOCIATE MARKETING SERVICES VERSUS COMMR. OF CUS. (AIRPORT), CHENNAI 2005 (9) TMI 177 - CESTAT, CHENNAI - However, we find that both the judgments are related to DTA Units. The ld. Commissioner (Appeals) order for non-confiscation of the goods and non imposition of redemption fine, relying on the judgments of DTA unit, is not proper - Therefore, the matter need to be remanded to the Adjudicating Authority for deciding the confiscation and redemption fine, in the light of above judgments. Appeal allowed by way of remand.

Summary

Issues:
- Confiscation of goods removed illicitly and consequent redemption fine in the case of a 100% EOU unit.

Analysis:
The Revenue filed an appeal seeking the confiscation of goods removed illicitly and the imposition of a redemption fine. The Assistant Commissioner argued that since the unit is a 100% EOU operating as a bonded warehouse under a B-17 bond, all activities fall under the bond's coverage. The Commissioner (Appeals) did not order confiscation or impose a redemption fine, stating that the goods were not available for confiscation. The Assistant Commissioner contended that even if goods are not physically present, the redemption fine should still apply due to the bond execution. The Assistant Commissioner cited several judgments in support of this argument, emphasizing the importance of the bond in cases involving 100% EOU units.

Despite notices, no one appeared on behalf of the respondent during the proceedings. The Tribunal carefully reviewed the submissions and records. It noted that the Commissioner (Appeals) based the decision on judgments related to DTA units, while the Assistant Commissioner relied on judgments specifically concerning 100% EOU units. As a result, the Tribunal found the Commissioner's decision to be improper and ordered a remand to the Adjudicating Authority for a fresh decision on the confiscation and redemption fine issue, considering the relevant judgments cited by the Assistant Commissioner.

In conclusion, the Tribunal allowed the Revenue's appeal by remanding the case to the Adjudicating Authority solely for the determination of confiscation and redemption fine in light of the specific judgments applicable to 100% EOU units. The order was pronounced in open court on 30.01.2019.