2019 (11) TMI 302 - AT - Customs

Confiscation - illegal removal of goods from in factory bonded private warehouse - import of base paper for impregnation without payment of Customs Duty and warehoused it in the Customs private bonded warehouse situated inside their factory premises - removal of 509 reels of base paper of various varieties from the warehouse without filing an Ex-bond bills of entry and without paying customs duty - inherent contradiction in the impugned order - HELD THAT - There is an inherent contradiction and ambiguity in the impugned order itself. The impugned order was passed on 10.08.2011. There is an inherent contradiction between the two findings. Para 13 records that the assessee was asserting that they were very much available. In Para 17, learned Commissioner records that since the goods were not available within the premises of the bonded warehouse, they are not liable for confiscation. In fact, if the goods were available within the bonded warehouse and have not been removed from there, they are not liable for confiscation at all - On this ground the goods will be liable for confiscation only if they have been removed from the customs bonded warehouse clandestinely without filing ex-bond bill of entry and without paying the customs duty. In such a case, if the goods are available outside the bonded warehouse, they are liable for confiscation. In view of the contradictory stand taken by the learned Commissioner, it is a fit case to be remanded back to record the correct position regarding availability of goods for confiscation (not availability of goods within the bonded warehouse) and pass an order accordingly - Appeal allowed by way of remand.

Summary

Issues:
1. Non-confiscation of goods and non-imposition of penalty under section 112(b) of the Customs Act, 1962.

Analysis:
The appeal was filed against the Order-in-Original by the revenue, challenging the non-confiscation of goods and non-imposition of penalty under section 112(b) of the Customs Act, 1962. The respondent, holders of a Customs Private Bonded Warehouse License, imported base paper for impregnation without paying Customs Duty. The officers found that the goods were removed without proper documentation. The Commissioner demanded Customs duties, interest, and penalties. The revenue contended that the goods were available for confiscation, citing statements and case laws. The respondent argued that redemption fine cannot be imposed if goods are not available for confiscation. The impugned order was found to have contradictory findings on the availability of goods for confiscation, leading to a remand for a correct determination.

The revenue argued that physical availability of goods is not necessary for confiscation or redemption fine, referencing legal precedents. They claimed that the goods were available for confiscation, contrary to the Commissioner's finding. The respondent contended that redemption fine cannot apply if goods are not available for confiscation, citing relevant case laws. They emphasized that confiscation implies the goods are available for redemption, which was not the case here. The impugned order was defended as correct and legal, requiring no interference.

The Tribunal found an inherent contradiction in the impugned order regarding the availability of goods for confiscation. The Commissioner's findings were inconsistent, stating goods were available in one part and not in another. If goods were available in the factory premises, they could be liable for confiscation if removed without proper procedures. Due to the contradictory stand, the case was remanded for a correct determination of the availability of goods for confiscation. The appeal was allowed for remand to the original authority for further proceedings.