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TMI Blog2017 (7) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... r as to the ineligibility for higher credit on account of the goods being ‘synthetic dye’. In these circumstances, we cannot come to the conclusion that the goods had been misdeclared and, therefore, confiscation under section 113 of Customs Act, 1962 with consequent imposition of penalty under section 114 of Customs Act, 1962 is not justifiable. Jurisdiction to determine the DEPB rate - Held that: - with the DEPB scheme no longer being in vogue, re-determination is an academic exercise which we need not overly concern ourselves with. Appeal allowed - decided in favor of appellant. - C/153/06 & C/206/07 - A/87958-87959/17/CB - Dated:- 23-2-2017 - Shri M V Ravindran, Member (Judicial) And Shri C J Mathew, Member (Technical) Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with intent to enforce penalty commensurately. In addition to limiting the entitlement to DEPB credit, the exporter was also directed to pay the difference of DEPB credit allowed to the extent of ₹ 756884 with applicable interest under section 28 of Customs Act, 1962 besides imposing penalty of ₹ 1,00,00,000 on the exporter under section 114 of Customs Act, 1962. The exporter is aggrieved by the imposition of penalties and the recovery of amount under section 28 of Customs Act, 1962. Revenue is aggrieved by the failure to impose a fine under section 125 of Customs Act, 1962. 4. Learned Counsel for appellant cites order-in-original no.4/2007/CAC/CC/K AP dated 11 th January 2007 of Commissioner of Customs (EP), Mumbai to adva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidering that the impugned order makes it abundantly clear that the goods are not available and that no bank guarantee/bond had been furnished, the cited decision may not advance the cause of Revenue. Section 126 of Customs Act, 1962 vests the custody of confiscated goods in the adjudicating authority; it is this custodianship that empowers the adjudicating authority to allow the confiscated goods to be redeemed on payment of appropriate fine. It necessarily follows that unless the goods are physically available for confiscation, the grant of the option to redeem the goods is meaningless. The quid pro quo for deposit of the fine is the transfer of possession of the goods; without the goods being available such transaction is legally and ph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only at the stage of utilisation of the credit that revenue implication arises in the transaction owing to availment of exemption to the extent of credit made use of. There is no evidence or any material particular on record in the impugned order to conclude that the allegedly ineligible credit had been made use of for any import. Had it been otherwise, it was incumbent upon the adjudicating authority to enumerate the bills of entry against which the ineligible credit had been utilised. In the absence of any such material, the recovery ordered under section 28 of Customs Act, 1962 is without legal authority. 8. A question that now arises is whether the exporter had misdeclared the goods. It is admitted in the impugned order that the exp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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