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TMI Blog2022 (10) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... h was called upon to decide, as mentioned in the impugned order, reads as follows: When the order confiscating the goods has been issued and the party has not opted to pay fine in lieu of confiscation, then would the sale proceeds remain with the Government if the goods are auctioned or they have to be paid to the importer after deduction of such payment or without such deduction? 3. The larger bench has answered the question thus: When the order confiscating the goods has been issued and the party has not opted to pay fine in lieu of such confiscation, then the goods can be sold and the sale proceeds would vest with the government. Penalty can still be imposed under section 112 of the Customs Act. An order for payment of all sale proceeds without deduction of redemption fine cannot, therefore, be issued. 4. Furthermore, as is evident upon reading paragraph 27 of the said order, the larger bench of the Tribunal also kept the issue open, which is, as to whether the appellant i.e., the assessee, could, even at this stage, pay fine in lieu of confiscation. 4.1. Accordingly, it was indicated by the larger bench of the Tribunal that this issue could be raised befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and penalty. In the first instance, there is nothing on the record to indicate when the appeal was actually filed though the appeal must have filed beyond period of 60 days from the date of the communication of the order since the appeal was earlier dismissed on August 28, 2013, as it was not accompanied by a delay of condonation application. Secondly, there is nothing on the record to indicate when the delay condonation application was actually filed. Even otherwise, the records indicate, that it was only by letter dated 28.04.2014 that the respondent informed the adjudicating authority that an appeal had been filed. In this view of the matter, the Commissioner (Appeals) was not justified in concluding that the goods should not have been auctioned as an appeal had been filed. 6. The only question which the larger bench was, as is evident, called upon to consider was, whether the revenue could adjust redemption fine against the sale proceeds from goods which were sold by it upon confiscation. 7. It is not in dispute that in the instant case, the Order-in-Original was passed on 26.11.2012. 7.1. The concerned authority that passed the Order-in-Original, was not persuaded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd then proceeded to decide the matter on merits. 10.4. A perusal of this order shows that, although the Commissioner of Customs (Appeals) did not disturb the finding returned in the Order-in-Original that the subject goods had to be confiscated, it varied the order to the extent of imposition of redemption fine. 10.5. The reason why such a direction was issued by the Commissioner of Customs (Appeals) was that during the pendency of the appeal, the subject goods i.e., imported marble blocks had been sold in a public auction by the respondent/revenue. 11. It is not disputed before us by Mr Harpreet Singh, who appears on behalf of the respondent/revenue, that the sale took place in May June 2013. 12. As would be evident from the narration of the events set forth hereinabove, the order closing the appeal which had been filed by the appellant/assessee, in the first instance, was passed only on 20.08.2013. Clearly, at the stage when the marble blocks were sold the appeal was pending adjudication before the Commissioner of Customs (Appeals). 12.1. Moving further, the respondent/revenue, being aggrieved by the direction issued by the Commissioner of Customs (Appeals) via the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Tribunal ought to be sustained. 14.1 It is Mr Harpreet Singh s contention that if the submission made by the appellant/assessee is accepted, then, in every case, the assessee would create a situation whereby the goods are sold in public auction and they are not called upon to account for redemption fine imposed by statutory authorities. 14.2 According to Mr Harpreet Singh, this, in sum and substance, is the view of the larger bench of the Tribunal. 14.3 Furthermore, Mr Harpreet Singh also says that upon confiscation of the subject goods, the right and title in the said goods vested in the revenue and therefore it had every right to sell the same and make adjustments, inter alia, towards penalty and redemption fine. 15. We have heard the learned counsel for the parties and perused the record. 16. According to us, what needs to be borne in mind is the fact that all throughout i.e., right up till the stage the larger bench of the Tribunal rendered a decision in the matter, the finding that the goods had, rightly, been confiscated has not been disturbed. 16.1 As noted above, the appellant/assessee, according to the Tribunal as well as the authorities below, conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtain an interim order in its appeal, with regard to the order dated 10.04.2019, the appellant/assessee received Rs.34,20,884/- after adjustment of the amount payable by it towards penalty and charges paid to a third party by the respondent/revenue, perhaps, for conducting the public auction. 21.2 To our minds, this could have been the only logical sequitur in the instant case. 22. Mr Harpreet Singh s argument that the property vested in the respondent/revenue since confiscation was ordered, is an unexceptional submission. No fault can be found with this submission of Mr Harpreet Singh. 23. The point where we disagree with Mr Harpreet Singh is with regard to the next submission, which is that, since the property in the subject goods vested in the respondent/revenue, it could adjust, apart from penalty and other charges incurred towards the sale of the goods, redemption fine as well. 24. We are of the view that, since the goods were not available, redemption fine cannot not be adjusted against the sale proceeds. 25. While passing the Order-in-Original, confiscation was ordered by the adjudicating authority, at which point, said authority thought it fit to give the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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