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TMI Blog2015 (8) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... his submission by pointing out that the show cause notice came to be issued because the assessee imported various consignments/goods as per the annexure to the show cause notice on presenting import licences mentioned in the annexure under the advance licence. The assessee thus availed duty free clearances on imported goods under Notification No. 203/92-Cus., dated 19th May, 1992 against such licences. 4. Inviting our attention to this Notification, copy of which is at page 74 of the appeal paper book, Mr. Jetly would submit that the exemption is admissible if the condition in clause (v) thereof that export obligation is discharged, within the period specified in the certificate styled as Export Obligation Discharge Certificate or within such extended period as may be granted by the Licensing Authority, by exporting goods manufactured in India in respect of which no input stage credit is obtained under Rules 56A or 57A of the Central Excise Rules, 1944, is complied with. Further, the facility under Rule 191A or 191B of the said Rules has not been availed; and drawback has not been claimed either under Section 74 of the Customs Act, 1962 or Customs and Central Excise Duties D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f export goods or export product. The goods may not be available but in terms of the Notification, itself, if a bond is contemplated that bond can be enforced and executed. In enforcing and executing it, it is possible and permissible for the revenue to resort to the powers under the Customs Act, 1962. In these circumstances, this is not a case where the Division Bench judgment of this Court in the case of Commissioner of Customs (Import), Mumbai v. Finesse Creation Inc. - 2009 (248) E.L.T. 122 would apply. 6. Placing reliance upon the judgment of the Supreme Court in the case of Rexnord Electronics and Controls Ltd. v. Union of India reported in 2008 (224) E.L.T. 184, Mr. Jetly would submit that the High Court of Karnataka view in the case of Commissioner of Customs, Bangalore v. Shilpa Trading Co., reported in 2014 (309) E.L.T. 641 (Kar.) supports his argument. The High Court of Karnataka is relying upon a judgment of the Hon'ble Supreme Court in the case of Weston Components Ltd. v. Commissioner of Customs, New Delhi reported in 2000 (115) E.L.T. 278. 7. The appeal therefore, be admitted on the substantial question of law, is the argument of Mr. Jetly. 8. On th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which is at page 74 of the appeal paper book. 11. The show cause notice alleges violation of Condition No. (v)(a) of the Notification No. 203/92. The show cause notice alleges that no input stage credit was admissible but in violation of this condition such a credit was availed of. A wrongful declaration has been given and on the basis of which input stage credit which was otherwise not admissible has been availed of. Such being the nature of the breach and violation and of this notification so also the licence that the goods which have been imported into India and for the purpose of eventual exports against an advance licence have been so brought in duty free. Once the condition is violated then the goods would attract duty and further consequences under the Customs Act, 1962. Further, the show cause notice alleges that the export is an act contrary to the prohibition under Foreign Trade (Development and Regulation) Act, 1992, Rule 14 of the Foreign Trade (Regulation) Rules, 1993 and by virtue of Section 3(3) of the said Act and Section 113(d) of the Customs Act not only the goods exported were liable for confiscation but penal consequences and action can follow. 12.&em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority as well. That is how the Tribunal concluded that if the goods are not available for confiscation, the redemption fine could not have been imposed. Now, in doing that the Tribunal has not referred to any provision of law nor it has referred to any judgment of this Court or of the Hon'ble Supreme Court. We do not find therefore, any larger controversy or wider question needs to be decided, particularly as raised by Mr. Jetly and sought to be answered by Mr. Shah. In the statutory background and the allegations in the show cause notice so also the Conditions in the Notification, the Tribunal has not referred to any bond or a legal undertaking. The Tribunal has found that the Notification contemplates that the materials imported are covered by a value based duty exemption entitlement certificate issued by the licensing authority in the form specified in the schedule annexed to the Notification, that the importer at the time of clearance of the imported materials produces proof of having executed a bond or legal undertaking before the licensing authority concerned for complying with the conditions of the Notification and makes a declaration before the Assistant Collector of Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ston's judgment (supra), the Division Bench held that the goods were released on the application of the assessee before the Supreme Court and on execution of a bond. Therefore, when the import was not found to be valid or there was any other irregularity which would entitle the customs authorities to confiscate the goods. That merely because the bond was executed would not take away the power of the Customs authority to levy redemption fine. The goods not being available for custody does not mean that the redemption cannot be imposed was an argument of the assessee before the Supreme Court which came to be rejected. The Division Bench then held that the redemption fine is a concept which arises in the event the goods are available and are to be redeemed. If the goods are not available there is no question of redemption of the goods. 17. We find that the Division Bench relied upon Section 125 of the Customs Act in that regard. Whenever confiscation of any goods is authorized by the Customs Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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