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TMI Blog2009 (6) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... d Hospital Equipment? (b) Whether in the facts and circumstances of the case while passing a common order, it was open to CESTAT to hold that one of the parties viz. Harkisandas Hospital before it is not required to pay the duty on the confiscated goods if not redeemed but the present Appellant would be liable to pay the duty on the confiscated goods whether or not the same are redeemed?" 2. We may now set out the relevant facts to dispose of the issues which arise in this appeal. The present appeal is against the judgment and order dated 11-6-2008 passed by CESTAT [2008 (231) E.L.T. 113 (Tri. - Mumbai)], which disposed of amongst others, appeal bearing No. C/676/02/Mum filed against the order dated 30-3-2002 of the Commissioner of Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds, give to the owner of the goods or, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit; Provided that, without prejudice to the provisions of the proviso to sub-section (2) of Section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. (2) Where any fine in lieu of confiscation of goods is imposed under sub- section (1) the owner of such goods or the person referred to in sub-section (1) shall, in addition, be liable to any duty and charges payable in respect of such goods." We may also reproduce section 126. "126 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India. Under Section 13, in the case where the goods the pilfered after unloading and before the proper officer has made an order for clearance for home consumption or deposit in a warehouse, the importer shall not be liable to pay the duty leviable on such goods except where such goods are restored to the importer after pilferage. Section 14 provides for valuation of goods. Section 16 provides the date for determination of rate of duty and tariff valuation of export goods. Section 17 provides for assessment of duty. Section 25 provides for power to grant exemption from duty. Section 23 provides for remission of duty on lost, destroyed or abandoned goods. Section 25 provides for grant of exemption from duty. Section 26 is the provision for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods on payment of fine. It is in this context that we may examine the contention as urged on behalf of the assessee. In our opinion, the issue really stands concluded considering the Coordinate Bench Judgments of this Court in Commissioner of Customs v. Wockhardt Hospital and Heart Institute, reported in 2006 (200) E.L.T. 15 and the judgment in Bombay Hospital Trust v. Commissioner of Customs (ACC) Mumbai - 2006 (201) E.L.T. 555 (Bom.) which follow the earlier Division Bench Judgment in the case of Wockhardt Hospital and Heart Institute. 6. Learned counsel for the Petitioner however sought to place reliance on Section 23 of the Customs Act which we have adverted to earlier to contend that if the owner of imported goods relinquishes his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses the Act itself has provided where the duty is not payable. The distinction between Section 23 and Section 125 becomes very apparent when one looks at the language of the section itself. Under Section 23, the person who imports the goods, surrenders his title in the goods. In other words duty is leviable on a person who imports the goods where such a person is not available, the legislature has provided that in such event no duty is payable. By surrendering title in the goods, the person importing the goods or the owner of the goods ceases to have a right to claim the goods. The order of confiscation is passed in respect of the person who has claimed to import or export the goods. In other words, claims title or right in the property. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for goods which are vested in it and on sale would have realized the value of the goods and from that to recover the duty which is unpaid as also fine. 8. Our attention was also invited to the judgment of the Supreme Court in the case of Mohan Meakin Ltd. v. Commissioner of Central Excise, Kochi, 2000 (115) E.L.T. 3 (S.C.). In our opinion, that judgment would be of no assistance as the issue there was entirely different. Admittedly there on proceedings for adjudication being conducted, the goods in question were released on payment of redemption fine. The Revenue even after that sought to initiate the proceedings for so called difference in value of imported goods from the ultimate bona fide purchaser for value. It is in that context tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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