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TMI Blog2017 (7) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... ir conduct cannot be but otherwise considered as one of deceit and contumacious. The order of the lower appellate authority in respect of confiscation of sale proceeds of the illegally removed imported goods and confirmation of penalty of ₹ 4,00,000/- under section 112(a) ibid is therefore just, fair and legal and does not call for any interference. Appeal dismissed - decided against appellant. - C/40/2007 and C/42143/2013 - Final Order Nos. 41190-41191 / 2017 - Dated:- 6-7-2017 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Ms. J. Ragini, Advocate for the Appellant Shri K. Veerabhadra Reddy, JC (AR) for the Respondent ORDER Per Bench The issues involved in both these appeals being interrelated and pertaining to the same imported goods, they are heard together and disposed by this common order. 2. Brief facts that lead to the filing of these two appeals are that 32 sets of used secondhand mini offset printing machines had been imported in the name of M/s. Goldline Offset Printers in May 1999. These goods were examined by the DRI. It appeared to the department that the market value of the goods would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide impugned order dated 25.6.2013 partly allowed the appeal restricting the confiscation of sale proceeds to ₹ 9,65,000/- only but retaining penalty of ₹ 4 lakhs imposed on them. The appellate authority ordered adjustment of these amounts against the deposited amount of ₹ 32 lakhs and ordered that the balance amount of ₹ 18,35,000/- be refunded the appellant in accordance with law. Hence Appeal No. C/42143/2013. 4. Today, when the matter came up for hearing, on behalf of the appellants learned counsel Ms. J. Ragini submitted that in respect of Appeal No. C/40/2007, the amount of ₹ 32 lakhs has been collected arbitrarily by the department without any basis which has not been taken note of by the Commissioner (Appeals); that as per the order of assessment there was no short-collection of duty and therefore the amount of ₹ 32 lakhs collected by the department has to be refunded to the appellant. Under these circumstances, the impugned order is not sustainable. 5. In respect of Appeal No. C/42143/2013, learned counsel submits that there cannot be second confiscation of the same goods which have been confiscated earlier by the Chief Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of the importer is quite evident and accordingly for dealing the goods which are liable for confiscation, the appellant has rendered itself liable for penalty. 8. We have heard the submissions made by both sides. 9. The issues that come up decision are as follows:- (i) In respect of Appeal No. C/40/2007, whether the rejection of the refund claim preferred by the appellant is not maintainable is in order or otherwise. (ii) In respect of Appeal No.C/42143/2013, whether the impugned order upholding confiscation of sale proceeds of the imported used mini offset printing machines to the extent of ₹ 9,65,000/- and penalty amount of ₹ 4,00,000/- is in order or otherwise. (iii) We intend to take up both the issues one by one. 10. In respect of Appeal No. C/40/2007, we note that the appellant had filed refund claim proximate to payment of ₹ 32 lakhs against Bill of Entry No. 022484 dated 31.7.2000. Refund section of Custom House issued deficiency memo-cum-show cause notice dated 16.10.2003 to the appellant stating that the claim was deficient since there were no enclosed copies of Order-in-Original / Order-in-Appeal etc. based on which the refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants having cleared consignment of 32 used mini offset printing machines which had been confiscated by the department and was lying in INDEV CFS after filing application for amendment of manifest and Bill of Entry thereafter. Pursuant to investigations conducted in respect of this allegedly irregular clearance of confiscated goods, during the investigation an amount of ₹ 32 lakhs was deposited by the appellants towards duty liability. The investigation resulted in issue of show cause notice dated 2.8.2005 and resultant adjudication proceedings had resulted in original authority ordering confiscation of 32 numbers of imported used mini offset printing machines which had been sold in the open market, confiscation of an amount of ₹ 32 lakhs paid by appellants as sale proceeds of illegally removed smuggled goods under section 121 ibid and imposition of penalties, inter alia, on the appellants. The lower appellate authority vide the impugned order dated 25.6.2013 has restricted the confiscation of sale proceeds to ₹ 9,65,000/-, which as per his findings was the actual sale proceeds of the imported goods when sold by the appellant after clearance from the custom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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