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TMI Blog2019 (11) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... inherent contradiction between the two findings. Para 13 records that the assessee was asserting that they were very much available. In Para 17, learned Commissioner records that since the goods were not available within the premises of the bonded warehouse, they are not liable for confiscation. In fact, if the goods were available within the bonded warehouse and have not been removed from there, they are not liable for confiscation at all - On this ground the goods will be liable for confiscation only if they have been removed from the customs bonded warehouse clandestinely without filing ex-bond bill of entry and without paying the customs duty. In such a case, if the goods are available outside the bonded warehouse, they are liable for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take the goods out from the warehouse and utilize in the manufacture of the final products. 3. The officers of Anti-Evasion Section, Hyderabad-I Commissionerate visited the factory on 16.04.2010 and found that they had removed 509 reels of base paper of various varieties from the warehouse without filing an Ex-bond bills of entry and without paying customs duty. During the course of investigation, the respondent paid the customs duties along with interest. After investigation, a show cause notice was issued to the respondent demanding the customs duties under section 72 read with section 28 of Customs Act, 1962. It was proposed to appropriate the amount of duty paid by them. It was further proposed to demand an interest of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring before the Commissioner. Clearly, this finding of the Commissioner was factually incorrect. Consequently, dropping of confiscation proposal based on this incorrect finding is incorrect too. b) Even otherwise, physical availability of the goods is not always precondition for imposing redemption fine. The Hon ble Apex Court in the case of Weston Components Ltd [2000 (115) ELT 278 (SC)] has categorically held that redemption fine is imposable even after release of goods on execution of bond. In the case of Munjani Bros [2011 (265) ELT 396 (Tri-Mumbai)] where the goods imported by a party were allowed to be cleared under bond and where such goods were eventually found to be liable for confiscation under section 111 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and on payment of redemption fine the assessee can redeem the goods. Where the goods are not available for confiscation there is no question of their redemption. Further, he would submit that section 125 is only an option given to the assessee for redemption of goods. If the assessee chooses not to redeem the goods the confiscation can continue. Therefore, in a situation where there are no goods which can be confiscated the question of imposition of redemption fine does not arise. He relies on the case laws of Finesse Creations Inc. [2009 (248) ELT 122 (Bom)], Shiv Kripa Ispat Pvt Ltd [2009 (235) ELT 623 (Tri-LB)], Bhagyanagar Metals Ltd [2016 (133) ELT 395 (Tri-LB)] and Atul Ltd [2017 (356) ELT 467 (Tri-Mumbai)]. When specifically questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onded premises, though they were kept within the factory premises. Reference in this regard is drawn to the answer given to question no 4 during the course of recording of statement of Sri Shiv Kumar Mishra, DGM (Personnel) of the Unit under section 14 of the Central Excise Act. 7. On the other hand, learned Commissioner recorded his finding in Para 17 as follows: 17. Regarding their contention that the impugned goods were available in the factory premises, it was found that the goods were not available in the bonded area and the assessee have not come up with any evidence to corroborate their above contention. In the absence of the same, one can only conclude that the goods removed unauthorizedly from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld by the Hon ble Apex Court [2010 (255) ELT A120 (SC)], the relevant portion of which is reproduced as hereunder: 8. There is an inherent contradiction between the two findings. Para 13 records that the assessee was asserting that they were very much available. In Para 17, learned Commissioner records that since the goods were not available within the premises of the bonded warehouse, they are not liable for confiscation. In fact, if the goods were available within the bonded warehouse and have not been removed from there, they are not liable for confiscation at all. On this ground the goods will be liable for confiscation only if they have been removed from the customs bonded warehouse clandestinely without filing ex-bo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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