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TMI Blog2010 (9) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... - no merits in the Commissioner’s order confiscating the goods and extending an option to the appellant to pay redemption fine – order set aside - C/492/2006 - A/1419/2010-WZB/AHD - Dated:- 8-9-2010 - Ms. Archana Wadhwa, Shri B.S.V. Murthy, JJ. REPRESENTED BY : Shri J.C. Patel, Advocate, for the Appellant. Shri R. Nagar, SDR, for the Respondent. [Order per : Archana Wadhwa, Member (J)]. The appellant is a proprietary concern having a private bonded warehouse for storage of bonded goods for which purpose they possess a warehousing licence issued by the department. They were importing various types of goods as ship stores and were supplying the same to various foreign going vessels under the provisions of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground that the same were lying in the passage outside the bonded premises. 3. On the above facts proceedings were initiated against the appellant proposing confiscation of various goods as also for imposition of penalties. 4. The Commissioner vide his impugned order accepted the appellant s contention that they themselves approached the Revenue for amendment of IGM. He observed that this is a case of warehousing bill of entry and makes the theory of watch advanced by the Revenue unacceptable. Accordingly he held that it is not possible to buy the theory of fraudulent intention on the part of the importer and once that position is accepted the foundation of the case is lost as far as the charge of illegal import is concerned. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustom officer. As such, the appellant was not to be gained in any manner because of the non mention of the goods and there being no duty element involved, confiscation of the same was not justified. 7. As against the above plea of the appellant, learned DR submits that even in the amended IGM, the appellants have not given detailed declaration of each and every item. They have mentioned electrical appliances against fridge, refrigerator, deep freezer, water dispenser and electrical iron etc. The details of the foodstuffs, cosmetics also do not stand given by them. As such he submits that the confiscation of the same with an option to redeem on payment of fine, was justified. 8. We find that the Commissioner has upheld the appellant s co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Commissioner that certain clearances were being permitted by the department without this licence. In any case on an objection raised by the department through the seizure dated9-4-04, they have obtained a provisional licence dated20-5-04from Deputy Chief Controller of Explosives, Navy Mumbai. It is seen that the Commissioner has not considered the above production of licence by the appellant, though belatedly. He has observed that since licence was required at the time of import intoIndia, the goods are liable to confiscation. 10. We find favour in the above contention of the learned advocate. Admittedly Freon gas was not one of the ordered products to the supplier and has been received by them from the supplier inadvertently. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an option to the appellant to redeem the same on payment of redemption fine of Rs. 4 lakhs. 12. As against the above reasoning adopted by the Commissioner, appellants have contended that the goods were admittedly within the warehouse premises, which is under the lock of the customs department. The panchnama dated8-4-04drawn at the bonded warehouse clearly confirms the fact that these goods were under the lock of the customs duty and the entire premises were under the seal of the customs department. In the absence of any allegation or evidence to the fact that the appellant had any intention to remove these goods clandestinely, the confiscation of the same with huge fine of Rs. 4 lakhs was not justified. 13. We find that it is not the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However we find that the appellant, at the time of drawing of panchnama has accepted such shortages and excesses, as arrived at by the visiting officers. There is no convincing explanation for the same. As such we do not intend to interfere in the confirmation of demand of duty in respect of shortages along with imposition of penalty of identical amount and in confiscation of the excess found goods with redemption fine of Rs. 19,000/-.16. Having held in favour of the assessee on all other counts and having extended the benefit of setting aside the confiscation of all other goods, we find no justification for imposition of penalty of Rs. 5 lakhs on the appellant under Section 112(a) of the Customs Act, 1962. The same is accordingly set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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