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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 ..... ha with S.P. Bharti, for the Appellant. S/Shri R.V. Desai, Sr. Counsel with Rohit B. Pardeshi, for the Respondent. [Judgment per : Ferdino I. Rebello, J. (Oral)]. - Admit on the following questions : "(a) Whether in the facts and circumstances of the case, it was open to CESTAT to hold that whether or not the confiscated Hospital Equipments are redeemed by the Appellant, they would be required to pay the Customs duty payable on confiscated 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 Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereupon vest in the Central Government." A perusal of Section 125 would show that in case of importation and exportation of prohibited goods the A.O. in lieu of confiscation may give as option to the person claiming the goods to pay fine and redeem the goods and in case of other goods shall give the owner an option to pay, in lieu of confiscation such a fine as the officer thinks fit. Sub-section (2) clarifies that if any fine is imposed in lieu of confiscation under sub-section (1), the person referred to in sub-section (1) in addition is also liable to any duty and charges payable in respect of such goods. Relying on these two provisions, it is sought to be contended that it is only in a case where fine is imposed that in addition the person is liable to pay duty and charges. If the goods are not released by payment of fine, the question of payment of duty and charges does not arise. As an illustration, the learned counsel had drawn our attention to Section 23 where it is provided that where the importer gives up title to the goods, then no duty is payable on the goods imported. 4. To understand the argument let us look at the scheme of the Act. Section 12 sets out that cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven an option to take the 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 title to the goods, he shall not be liable to pay the duty thereon. Section 23 reads as under : "23. Remission of duty on lost, destroyed or abandoned goods. - (1) Without prejudice to the provisions of Section 13, where it is shown to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs that any imported goods have been lost (otherwise than as a result of pilferage) or destroye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re has made it clear that even if the goods are released on payment of fine, such person is also liable to pay duty and charges thereon. Can therefore, Section 23 and Section 125(2) be read in the manner to contend that once the goods are confiscated and fine is not paid pursuant to which they vests in the State, no duty is payable. In our opinion, if this argument is accepted, it will be destructive of the provisions of the schemes of the Act itself. Section 111 confers the power to confiscate and applies only when the goods are improperly imported and or the other provisions satisfied. Whereas Sections 12 and 17 are in respect of the goods which are dutiable. Even in respect of those goods, there may be improper importation. The fine payable to get possession of the goods under Section 125 is distinct and different from the duty of goods which are to be imported or exported. It is the nature of recompense to the state 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. Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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