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TMI Blog2011 (7) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... foundation in the show cause notice as to the ingredients of confiscation, the order of confiscation made by authorities below is unsustainable - Appeal is dismissed - E/1231/2009-SM(BR) - 458/2011- SM(BR)(PB) - Dated:- 14-7-2011 - Shri D.N. Panda, J. REPRESENTED BY : Shri Anil Khanna, DR, for the Appellant. Shri Amit Jain, Advocate, for the Respondent. [Order]. The short question arise in this appeal is whether the ingredients of Section 11AC should necessarily be present to confiscate the goods and penal consequences to follow as prescribed by Rule 25 of Central Excise Rules, 2002. The Authorities issued show cause notice for the default in payment of duty liability by due date which was paid subsequently with shor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Shiv Kripa Ispat Pvt. Ltd. reported in 2009 (235) E.L.T. 623 (Tri-LB) that when goods were not available for confiscation, no confiscation was warranted and no redemption fine payable. Added to that, there is also decision in Sudarshan Cargo Pvt. Ltd. v. Commissioner of Customs (Exports) by Hon ble High Court of Bombay reported in 2010 (258) E.L.T. 197 (Bombay). Therefore, learned Advocate prays that when the act of the appellant has suffered penalty, no confiscation is possible since goods were not available for confiscation. So also redemption find is not imposable. 3. Ld. DR on the other hand submits that the authorities have held against the appellant appropriately because the goods have gone out of their reach. The assessee was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st Rule 8 to play its role in respect of removal of the goods. When there is breach of such bond that attracts liability to penal consequence under law. 5.2 The legal position aforesaid calls for finding out penal consequence prescribed by law. Where there is a knowable breach of law clearing goods without payment of duty and no duty is paid by due date while an assessee is aware of provisions of Rule 8 makes the goods out of reach of Revenue to confiscate, such an action calls for confiscation. Plea of non-existence of goods is not available to the assessee who made breach of law. But to confiscate goods for violation of Rule 8, existence of the ingredients of Section 11AC is essential. 5.3 Reading of Rule 25 of Central Excise Rules, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fiscation is unwarranted, penalty becomes payable if there is breach of law. In other words, the case where ingredients of Section 11AC are present, that calls for action confiscation and penalty under Rule 25. Both confiscation of goods as well as levy of penalty is permissible when the deliberate act of the assessee results in extinct of the goods making that beyond reach of Excise Authorities. 5.5 On the aforesaid background of law, the present case need to be tested. Show cause notice has not brought presence of ingredients of foolproof case of Section 11AC. Once the ingredient of Section 11AC is absent, confiscation of goods is unwarranted. When there is no confiscation, there shall not be redemption fine. 6. Since the citations ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the provisions of Section 125 of Customs Act, 1962 and the Larger Bench decision was also following the customs decision. In the present case confiscation was ordered invoking Rule 25 of Central Excise Rules, 2002 which is subject to provision of Section 11AC of Central Excise Act, 1944 was without bringing out any ingredients of that section. In absence of foundation in the show cause notice as to the ingredients of confiscation, the order of confiscation made by authorities below is unsustainable. 7. In the result, Revenue s appeal is dismissed on the reasonings stated aforesaid while penalty levied is confirmed as has been done in adjudication. So also ld. Counsel says that the assessee is not in appeal against penalty imposed. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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