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TMI Blog2020 (3) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... by payment of redemption fine, Revenue is not in a position to return the impugned goods. If goods are not available for redemption on account of disposal of the same by Revenue appellant is not required to pay redemption fine and Customs duty and also eligible for refund of sale proceeds - On examination of provisions of the Section 112(b) of said Act, the penalty is reduced to ₹ 1,33,429/- - As per record the amount of sale proceeds is ₹ 38,62,524/-. I therefore in the circumstances of the matter order for payment of ₹ 38,62,524/- Minus ₹ 1,33,429/- personal penalty to the appellant by Revenue. - Customs Miscellaneous Application No.70471 of 2019 In Customs Appeal No.70554 of 2019 - MISCELLANEOUS ORDER NO. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority viz. CESTAT constituted for Allahabad region, it would be appropriate that the petitioner makes all prayers before the said authority. Any order passed by the writ Court in this regard is likely to reflect on the jurisdiction of CESTAT. 7. The petition is disposed of with liberty to the petitioner to file an application before Customs Excise Service Tax Appellate Tribunal Allahabad. So in terms of the said direction the appellant has filed the present application. 2. During the hearing of the said Application both the sides agreed that for proper appropriation of the issue main appeal needs to be heard. Therefore the main appeal was heard. 3. Brief facts of the case are that the appellant was travelling from Abu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order No.71214/2019 dated 28/06/2019. 4. Heard Shri Nishant Mishra learned counsel for the appellant alongwith Shri Vaibhav Krishna learned counsel on behalf of appellant. Shri Nishant Mishra has submitted that the issue that was raised before the Hon ble High Court was that the entire amount of sale proceeds of goods i.e. gold should be refunded to the appellant without imposition of redemption fine applicable duties and penalties imposed on the appellant. In view of the fact that during the pendency of limitation period of filing of appeal before learned Commissioner (Appeals) Revenue had sold the impugned goods and that the Hon ble Allahabad High Court has not passed any order on merits and therefore that issue is subject matter of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the present case they have not paid Customs duty nor paid redemption fine so far since the issue is still under litigation. However, he has submitted that since the goods are not available the ruling by Hon ble Supreme Court in the case of Shilps Impex should be applied and he should not be insisted upon to pay redemption fine and duty and sale proceeds may be refunded to him. Further learned counsel for the appellant has submitted that maximum penalty under Section 112(b) is 10% of the amount of duty evaded. Such amount works out to ₹ 1,33,429/- and penalty imposed is ₹ 2,50,000/- which is beyond statutory provisions. 5. Heard Shri B. K. Jain learned Assistant Commissioner on behalf of respondent. He has submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on payment of redemption fine. Due to action of Revenue of selling impugned goods during the period of filing appeal before learned Commissioner (Appeals) the goods are not available for redemption therefore Revenue has rendered right of appellant under Section 125 of Customs Act, 1962 as non-enforceable. Therefore the contention of learned A.R. for Revenue that redemption fine should be recovered cannot be enforced because by payment of redemption fine, Revenue is not in a position to return the impugned goods. In the circumstances that the goods are not available for redemption the ruling by Hon ble Supreme Court in the case of Shilps Impex is to be followed. For the sake of ready reference the ruling by Hon ble Supreme Court through inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and passed following order:- Learned counsel Mr. K. Kumar appearing on behalf of the petitioner had made submissions that his client had not received the full amount and in affidavit-in- rejoinder it is stated that averments made in paragraph 2 of the counter was not factually correct. He has further stated as under: The Dy. Commissioner of Customs in his order dt. 18.3.2000 had ordered for the refund of the duty amount of ₹ 1,80,000/- and R.F. amount of ₹ 2,00,000/- only thus leaving the penalty amount of ₹ 50,000/-. However, even the duty amount of ₹ 1,80,000/- and the R.F. amount of ₹ 2,00,000/- was again deducted from the assessable value of the goods i.e. ₹ 6,44,997/- in terms of the Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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