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TMI Blog2010 (11) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... ex shall remain the same as those imposed by the Hon’ble High Court, Rs. 36 lakhs and Rs. 42 lakhs respectively Regarding interest - Held that: the interest shall be calculated on the seizure value of the goods not covered by any Bill of Entry and on the declared value of other goods covered by Bills of Entry - Appeals are disposed of - C/629, 634, 721 & 831-838/2003 - A/501-511/2010-WZB/C-I/(CSTB) - Dated:- 24-11-2010 - S/Shri P.G. Chacko, S.K. Gaule, JJ. REPRESENTED BY : S/Shri V.M. Advani and A.K. Chatterjee, Advocates, for the Appellant. Shri W.L. Hangshing, JCDR, for the Respondent. [Order per : P.G. Chacko, Member (J)]. - In this batch of appeals, there is no representation for M/s. Munjani Brothers (C/629/2003), Kiran Exports (C/634/2003) and DS Brothers (C/721/2003) despite notice, nor any request of theirs for adjournment. All other appellants are represented by counsel. JCDR represents the respondent in these appeals. 2. This case is coming up before us pursuant to a remand order of the Hon ble High Court viz. common order dated 25-8-2010 passed in Writ Petition No. 7516 of 2006 [M/s. Deepali Exports and Another v. Union of India and Others] and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the appellants in appeal Nos. C/833-838/2003 has extensively referred to the facts of the case and has endeavoured to make out a case for setting aside the Commissioner s order against his clients. The gist of submissions is that, insofar as the rough diamonds in respect of which no Bill of Entry was filed are concerned, the order of confiscation and penalties is not sustainable in law and that, as regards the rest of the diamonds for which Bills of Entry were filed, the learned Commissioner ought to have allowed its clearance under the substituted licences (Replenishment Licences) which were subsequently produced by the importers. In this connection, the learned counsel has claimed support from the Tribunal s decision in H. Kumar Gems v. Commissioner of Customs, Ahmedabad 2001 (137) E.L.T. 61 (Tri.) wherein the importer produced free SIL (Special Import Licence) (valid on the date of importation of silver bars) purchased from the market at a later date than the date of importation, with a request to accept the same as substitute for the defective SIL which was produced along with the Bill of Entry. In the cited case, the Tribunal took the view that such request of the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the subsequent development noted by the High Court (which is that the diamonds which were absolutely confiscated by the Commissioner were eventually disposed of by the department through auction even while the appeals were pending before the Tribunal) has a bearing. According to the JCDR, the views expressed by the Hon ble High Court in its judgment dated 31-7-2009 on all other issues on which the question whether the goods were physically available for confiscation or not did not have any bearing will continue to hold good. The said question is relevant only to the imposability of redemption fine and to its quantum. It is not even relevant to penalty. It is, therefore, urged that the decision of the Hon ble High Court on other issues, as recorded in the judgment dated 31-7-2009, be followed by the Tribunal. Insofar as redemption fine and penalties are concerned, it is submitted that these aspects are liable to be examined afresh in terms of the High Court s remand order. 7. In their rejoinder, the learned counsel for all the appellants barring the first three (who are not represented today) have fairly submitted that the remand order of the Hon ble High Court can be carried ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We are unable to accept this plea. Physical presence of the goods is not always determinative of fine. There are factual situations in which a fine could be imposed in lieu of confiscation of goods which are not available for confiscation. Where the goods imported by a party was allowed to be cleared under bond or against an undertaking and where such goods were eventually found to be liable to confiscation under Section 111 of the Customs Act, it would be open to the adjudicating authority to impose fine in lieu of confiscation, even in the absence of the goods. If, on the other hand, the imported goods were unconditionally allowed to be cleared, the adjudicating authority would not be justified in imposing fine in lieu of confiscation of the goods not physically available. In the instant case, the live consignments were confiscated and there was no permission to the importers for clearing the goods. The stigma of offence committed by the importers remained with these goods. However, a part of these goods were not covered by any Bills of Entry and, therefore, the benefit given by the Hon ble High Court in its judgment dated 31-7-2009 should be available to them. In respect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation with redemption fine would be applicable only to the other diamonds covered by Bills of Entry, and the share of these goods in the sale proceeds would be approximately 50% of Rs. 4.95 crores. The importer-appellants (namely, M/s. Vijaybhav and M/s. Deepali Exports) will share the fine proportionately. 11. Case law cited before us by the learned counsel supports their plea for return of the sale proceeds of the goods. It is not in dispute that the diamonds were disposed of by the department during the pendency of these appeals in violation of the instructions of the Board contained in the circular dated 14-2-2006. We are, therefore, of the view that the above appellants are entitled to get back their share of the sale proceeds after adjustment of the respective amounts of redemption fine and penalty. Penalties of Rs. 1 crore and Rs. 70 lakhs were imposed on M/s. Deepali Exports and M/s. Vijaybhav respectively by the Hon ble High Court, but this was on the premise that the entire goods were liable to confiscation under Section 111 of the Customs Act. Now that we have found that the diamonds without Bill of Entry were not liable to confiscation at all, the quanta of penalties ..... X X X X Extracts X X X X X X X X Extracts X X X X
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