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TMI Blog2015 (9) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... t aside, however demand of differential amount of Drawback and interest thereupon maintained - Decided partially in favour of Assesse. - C/365/2010-Mum - Final Order No. A/1506/2014-WZB/C-IV(SMB) - Dated:- 14-11-2014 - Shri Ramesh Nair, Member (J) Shri Anil Balani, Advocate, for the Appellant. Shri Senthil Nathan, Dy. Commissioner (AR), for the Respondent. ORDER The appeal is directed against Order-in-Original No. 61/2010, dated 24-2-2010 passed by the Commissioner of Customs (Import), JNCH, Nhava Sheva, wherein he ordered as under :- 4.1 The demand of differential amount of drawback of ₹ 9,47,384/- (Nine lakhs forty seven thousand three hundred eighty four only) is confirmed against M/s. Maheshraj Chemicals Pvt. Ltd. under Rule 16 of the Customs and Central Excise Duties Drawback Rules, 1995. 4.2 The differential amount of drawback amounting to ₹ 9,47,371/- (Nine lakhs forty seven thousand three hundred seventy one only) paid by M/s. Maheshraj Chemicals Pvt. Ltd., is ordered to be adjusted against the above demand. 4.3 M/s. Maheshraj Chemicals Pvt. Ltd. should pay interest at the prescribed rate under Rule 16 of the Customs an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties Drawback Rules, 1995 read with Section 75A of the Customs Act, 1962. The said show cause notice was adjudicated and all the charges have been confirmed. Aggrieved with adjudication order, the appellant is before me. 3. Shri Anil Balani, ld. Counsel for the appellant submits that the appellant is not disputing the sanction of excess Drawback amount of ₹ 9,47,371/- which was already paid admittedly before issuance of show cause notice. The appellant s grievance is limited to confiscation, redemption fine and penalty imposed on them. It is his submission that firstly the goods which were ordered for confiscation and imposition of penalty/fine are not available and same was never seized or released previously under bond, therefore no redemption fine can be imposed, as held in 2009 (235) E.L.T. 623 (Tri.-LB) - Shiv Kripa Ispat Pvt. Ltd. v. CC. EX. Cus., Nasik. Alternatively, he also submits that confiscation of goods on which excess Drawback has been sanctioned was ordered under Section 113(ii). The said Section is not invokable in the present case, as it is applicable to the cases where the fixation of rate of Drawback under Section 75 is involved or in other word where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gments that goods which are not physically available for confiscation redemption fine cannot be demanded. In the larger bench of this Tribunal in case of 2009 (235) E.L.T. 623 (Tri.-LB) - Shiv Kripa Ispat Pvt. Ltd. v. CC. EX. Cus., Nasik, it was held :- 9. We have given careful consideration to the submissions. As rightly pointed by the learned counsel, the Hon ble High Court of Punjab Haryana, in Raja Impex case (supra), has rendered decision on identical issue. One of the substantial questions of law placed before the High Court by the department was whether redemption fine under Section 125 of the Customs Act could be imposed where the goods were neither available for confiscation nor cleared under bond/undertaking. The Hon ble High Court followed the ratio of the Apex Court s judgment in Weston Components case and held that, as the goods in question had been allowed to be cleared without execution of any bond/undertaking by the importer, no redemption fine could be imposed under Section 125 of the Customs Act in lieu of confiscation. Reproduced below is the relevant part of the High Court s judgment. 12. It may also be noticed here that in the case of M/s. Weston Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redemption fine of ₹ 2.89 lakhs has been imposed when the goods were not available for confiscation, the same having been exported many years ago. Neither was any bond with a security in any format available with the Department to be enforced. In view of this it is clear that the redemption fine imposed was totally outside the purview of legal provisions in this regard. Therefore, we set aside the order impugned and allow the appeal with consequential relief as per law. (emphasis supplied.) Dismissing the department s Civil Appeal filed against the above order of the Tribunal, the Apex Court ordered vide 2005 (184) E.L.T. A36 (S.C.) as under : We see no reason to interfere with the impugned order. The appeal is dismissed. (emphasis supplied.) In the result, the view taken by the Tribunal in Chinku Exports case stands affirmed by the Apex Court and consequently the similar view taken by the P H High Court in Raja Impex case is a binding precedent while the contra decision of the Madras High Court in Venus Enterprises case ceases to be good law on the point. It may be noted contextually that the dismissal, by the Apex Court, of the SLP filed by M/s. Venus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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