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TMI Blog2023 (8) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... on. It is clear that this is not a case where the Bank Guarantee has been encashed by the Department when the OIO was passed. The Security Deposit was available right on the day when the import has taken place. Therefore, when the entire amount was available in the form of Security Deposit of Rs.73,65,624/- on the day of import, the question of the Appellant paying any interest till the payment of duty will not arise. In this case, it is seen that entire amount has been paid on the date of import itself, partly by way of 15% payment through Bill of Entry and balance 85% by way of Security Deposit. The Bangalore Tribunal in the case of FEMCO FILTERS (P) LTD. VERSUS COMMISSIONER OF CUSTOMS, BANGALORE [ 2006 (5) TMI 317 - CESTAT, BANGALORE ] has held there was no provision under Notification No. 160/92 for demand of interest. Therefore, the demand of interest is not sustainable. As regards the confiscation, we find there was no deliberate violation of the conditions of the Notification. In the present case also in the Notification No. 27/2008-Cus dated 01/03/2008, it is seen that there is no provision to impose any interest when the differential duty is paid - the OIO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally against payment of 15% of the total duty along the re-exported bond executed by the Appellant and with security deposit of Rs.73,65,624/-. The Appellant could not reexport the goods since the project work was not completed within the prescribed time and most of the equipments were damaged/broken/lost in the river belt when the project was being undertaken. The Department issued Show Cause Notice to enforce the re-export demanding differential duty with interest and proposing confiscation of goods and imposition of penalty. After due process, the Adjudicating Authority confirmed the demand amounting to Rs.73,65,624/- along with interest. He imposed penalty of Rs. 6 lakhs in terms of Section 112 (a) read with Section 111(o) of the Customs Act, 1962. He also confiscated the imported goods with an Assessable Value of 3,91,65,562/-. He gave the option to redeem the same on payment of Redemption Fine of Rs.39,00,000/-. He appropriated the confirmed demand of Rs. 73,65,624/- which was given as Security Deposit by the Appellant at the time of imports. Being aggrieved by the interest, redemption fine and penalty, the Appellant is before the Tribunal. 2. The Learned Consultant appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly, the Department cannot confiscate the goods and impose the penalty. 4. He also submits that in respect of the same Appellant, in respect of one Bill of Entry No. 465375 dated 16/4/2009 when they were not able to re-export, the Adjudicating Authority has only confirmed the differential duty along with interest. He has not imposed any penalty nor has he confiscated the goods. The Department has not filed any Appeal against this order dated 29/03/2011. Therefore, it is clear that the Department has subsequently taken the view that no confiscation, redemption fine and penalty is required in such cases. In view of the foregoing, the Learned Consultant prays that the present Appeal may be allowed. 5. The Learned AR reiterates the findings of the Adjudicating Authority. He submits that it is an admitted fact that even after executing the Bond undertaking to re-export the goods within 6 months, the Appellants have failed to do so. Therefore, he justifies the findings and order of the Adjudicating Authority. 6. Heard both sides and perused the documents. 7. On going through the Notification No. 27/2008-Cus dated 01/03/2008, it is seen that the condition under (5) of Limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Entry and balance 85% by way of Security Deposit. 10. The Bangalore Tribunal in the case of Femco Filters Pvt Ltd. Vs. Commr. of Customs, Bangalore-2006 (203) E. L. T. 494 (Tri.- Banglore) has held as under:- 7. xxxxx Further, we find that during the relevant period, there was no provision under Notification No. 160/92 for demand of interest. Therefore, the demand of interest is not sustainable. As regards the confiscation, we find there was no deliberate violation of the conditions of the Notification. The appellant could not fulfil the export obligations due to circumstances, which were beyond his control. In such a case, imposing penalty and confiscating the impugned goods cannot be sustained. Therefore, we set aside the confiscation of the impugned goods. When the confiscation is set aside, no penalty can be levied. In view of the above observations, we set aside the impugned order and allow the appeals with consequential relief. [Emphasis Supplied] 11. In the present case also in the Notification No. 27/2008-Cus dated 01/03/2008, it is seen that there is no provision to impose any interest when the differential duty is paid. 12. In view of the above observ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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