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TMI Blog2016 (9) TMI 929X X X X Extracts X X X X X X X X Extracts X X X X ..... hout fulfilling their obligation of paying redemption fine. Therefore more stringent conditions need to be put for allowing further use of the asset. The applicants to execute bank guarantee of ₹ 2,85,00,000/- in addition to existing bank guarantee. On furnishing of such guarantee the respondents will permit the applicant’s to sail out of India the barge subject to condition that the applicant shall file an undertaking before authority stating the purpose of taking out the vessel and to bring back within a period of four months from the date of release of the vessel. Petition disposed off - decided against petitioner. - C/87423/14 - M/89062/16/CB - Dated:- 4-8-2016 - Shri Ramesh Nair, Member (Judicial) and Shri Raju, Member (Technical) Appellant - Represented by Shri R.B. Pardeshi, Advocate Shri N.S. Patel, Advocate Respondent - Represented by Shri M.K. Sarangi, Jt. Commr. (AR) ORDER This is a miscellaneous application filed by M/s Bhambhani Shipping Ltd. seeking relief in the form of directions from CESTAT under Rule 41 of the CESTAT (Procedure) Rules, 1982. The appellant had imported a Barge - HALANI STAR, and the same was cleared provisionally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Sterlite Optical Technologies Ltd. Vs. Commissioner of Central Excise, Aurangabad - 2005 (180) ELT 367 (Tri-Mum). He argued that in the said case, the Tribunal had refused stay application in case of redemption fine under Section 35F of the Central Excise Act, 1944. 4. We have considered the rival submissions. We find that Section129E of the Customs Act, 1962, does not deal with this situation and, therefore, no relief under Section 35F can be granted. However, it is seen that the applicants are seeking the directions under Rule 41 of the CESTAT (Procedure) Rules, 1982. Earlier in similar circumstances, in the applicants own case, Tribunal vide order dated 5.1.2015 observed as follows: - 5. Having considered the rival contentions, we find that the further collection of amount demanded towards penalty and fine has been stayed by this Tribunal vide stay order dated 15.7.2014. Further we find that the interest of revenue is secured in view of the Bond and Bank Guarantee and also the pre-deposit made vide the said order dated 15.7.2014 of this Tribunal. Thus, we permit the appellant to take the vessel out of Indian Territorial waters for a period of 24 months for execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guarantee of ₹ 60,00,000/- vide order no. S/925/13/CSTB/C-I dated 25th June 2013 to be brought back on 30th September 2013. The Tribunal, by order no. M/1633/13/CSTB/C-I dated 28th October 2013, rejected the request of the appellant for extension of time for retention of the vessel outside the country. Thereafter, in Writ Petition No. 1070 of 2013, the Hon ble High Court vide its order dated 25th November 2013 allowed extension of time till 30th December 2013. On a further application moved by the appellant, this Tribunal, by order no. M/887-888/14/CSTB/C-I dated 30th May 2014, allowed the vessel to be taken out again, this time, for commercial undertaking subject to execution of bank guarantee of ₹ 3,00,00,000/-. 6. It would appear that, in the past, the vessel had been taken out for dry dock and repairs which were considered essential to avoid degeneration of the asset. Accordingly, bank guarantee, adduced as security, was restricted to ₹ 60,00,000/-. However, when it was taken out for commercial purpose, bank guarantee of ₹ 3,00,00,000/- was directed to be executed. We also observe that in a similar application filed for a temporary release of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisionally released asset without executing option of redemption? There are two situations possible. i) The provisionally released asset is consumed or disposed off. In such cases the importers are not in a position to return the provisionally released goods and the option of redemption is deemed to have been exercised by them ii) The provisionally released asset is in custody and possible use of the importer after provisional release. In such cases it is open to the importer to exercise the option of redemption or not. 4.3 In the first case there is no possibility of return of the asset and in such case redemption fine needs to be recovered immediately. 4.4 In the second scenario the asset is in existence and being used by the importer. All assets have a life and depreciate in value with use/time. It is possible that after using the provisionally released goods for its useful life the value of the asset reduces below the redemption fine imposed. In such scenario the importer will not exercise the option to redeem the goods. 4.5 Earlier the Tribunal vide order dated 15.1.2015 granted similar benefit to the applicants by observing as follows 5. Having con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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