C.E.A. No. 50 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.E.A. No. 50 of 2008 Date of decision: 23.04.2008 Commissioner of Customs, Amritsar ..... Appellant Versus M/s Raja Impex (p) Ld. B-33, Industrial Estate, Ludhiana Through its Chairman and others. ..... Respondents. CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present:- Ms.Geeta Singhwal, Advocate for the appellant. RAKESH KUMAR GARG , J. Brief facts of the appeal are that M/s Raja Impex (P) Ltd, B-33, Industrial Estate, Ludhiana ( hereinafter referred to as the respondent/assessee ) filed bill of Entry No. 001546 dated 04.12.2004 for clearance of 500 set of used 15” coloured computer monitors ( hereinafter referred to as the impugned goods ) valued at US $ 5 per piece under sub- heading 84716030 of the Ist Schedule of the Custom Tariff Act, 1975 ( hereinafter referred to as “CA Act” ) . At the material time the import of the impugned goods was restricted as per Para 2.33 of Foreign Trade Procedure (2002-07). Relevant para is reproduced:- “Import of second hand computer and laptop are restricted for import. The import of refurbished/reconditioned spares will be allowed on production of Chartered Engineer certificate that such spares have a residual life not less than 80% of the life of the original spares.” C.E.A. No. 50 of 2008 -2- The import under this sub para would be subject to the condition that the goods shall not be used for any commercial purpose, is non transferable and complies with all the terms and conditions of relevant Customs Rules and Regulations. The respondent/assessee vide its letter dated 08.12.2004 stated that they were not manufacturers and they had imported the impugned goods for trading purposes. To ascertain the value of the goods, the department collected data and the CIF value of the similar goods was found to be US$ 15 per piece. Therefore, there was mis-declaration of value and the assessable value of the goods was arrived at Rs.3,42,769/- and the duty was calculated as Rs.95,811/-. Since the goods imported were in contravention to para 2.33 of Foreign Trade Procedure ( 2002-07), the respondents issued show cause notice vide C. No. VIII/CUS/CFS/OWPL/BE/1546/04/565-A dated 31.3.2005 as to why the goods imported in violation of the policy should not be confiscated under Section 111 of the Customs Act, 1962 ( hereinafter referred to as the Act ) and penalty should not be imposed under Section 112 of the Act. The respondent firm filed the reply to the show cause notice on 5.5.2005. After giving the opportunity of hearing to the respondent firm, the Adjudicating Authority vide order ( original ) No. 31/JC/CFS/LDH/06 dated 25.5.2006 C.E.A. No. 50 of 2008 -3- confiscated 500 sets of 15 used coloured monitors for computers valued at Rs.3,42,769/-. Since the goods were already released, a fine of Rs.60,000/- in lieu of confiscation along with penalty of Rs.30,000/- was imposed upon the respondent firm. The assessee filed appeal against the order-in- original with the Commissioner ( Appeals ) Central Excise Jalandhar, who vide OIA No. 30/CUS/APPL/LDH/2006 dated 28.08.2006 set aside the redemption fine imposed upon the appellant department relying on the judgment of Hon'ble Supreme Court in the case of M/s Weston Components Ltd. Vs. Commissioner of Customs, New Delhi reported in 2000 (115) ELT 278 (SC) and reduced penalty from Rs.30,000/- to Rs.10,000/-. Aggrieved against the said order, the department preferred appeal before the CESTAT praying for upholding the order dated 28.8.2006, who vide its order dated 25.05.2007 dismissed the appeal of the revenue relying upon the judgment of the Hon'ble Supreme Court in the case case of M/s Weston Components Ltd. Vs./ Commissioner of Customs, ( supra ) and Tribunal in the case of Ram Khazana Electronic Vs. CC reported in 2003 ( 156) ELT 122. C.E.A. No. 50 of 2008 -4- Still not satisfied with the order of the Tribunal, the department has filed the instant appeal challenging impugned order passed by the appellate authority and the Tribunal. In the present appeal, the department has sought to raise the following substantial questions of law:- “1- Whether redemption fine under Section 125 of the Customs Act, 1962 can be imposed even if goods are neither available for confiscation nor cleared on undertaking/bond? 2- Whether the respondent firm has imported the goods in violation of the provisions of Para 2.33 read with Para 2.33.1 of the Policy and also held that the goods are liable to for confiscation under Section 111(d) of the Act? 3- Whether there was a mis-declaration of the value of the goods on the part of the respondent firm and the respondent firm is liable to be pay the redemption fine and penalty on account of mis-declaration of the value of the goods? 4- Whether the CESTAT is justified in dismissing the appeal without considering the issue and merits of the case altogether? C.E.A. No. 50 of 2008 -5- 5- Whether the order passed by the Ld. Commissioner ( Appeals ) are illegal and arbitrary especially when he reached to a conclusion that the respondent firm has imported the goods in violation of the provisions of Para 2.33 read with Para 2.33.1 of the Policy?” Ms.Geeta Singhwal, counsel for the department has argued that the orders passed by the CESTAT and Commissioner, Appeals are not in confirmity with the provisions of Section 125 of the Act which provides that whenever confiscation of any goods is authorized in case of non-prohibited goods, the Adjudicating Authority shall give an option to pay fine in lieu of confiscation. Hence, once the goods are held as offending in nature, even if the said goods are not physically available for confiscation, the same ought to be ordered as confiscated and redemption fine should have been imposed. Learned counsel for the department has further argued that since there was mis-declaration of value by the respondent-firm, therefore, the respondent firm is liable to pay redemption fee and penalty. Since the goods were imported in contravention of Foreign Trade Policy, therefore, the redemption fine of Rs.60,000/- and penalty of Rs.30,000/- were rightly imposed by the Adjudicating Authority. The learned counsel for the department has further argued that once the goods are held to be liable for confiscation in terms of Section 111(d) of the Act, the said C.E.A. No. 50 of 2008 -6- goods ought to have been confiscated as the Act does not stipulate the availability of the goods for them to be confiscated and imposing fine in lieu of confiscation under Section 125 of the Act. In support of her contentions, learned counsel for the department has relied upon the judgment of Hon'ble Supreme Court in the case of M/s Weston Components Ltd. Vs. Commissioner of Customs, New Delhi reported in 2000 (115) ELT 278 (SC). We have heard learned counsel for the department and perused the record. The respondent in the present case took clearance of imported machinery under Bill of Entry No. 1546 dated 04.12.2004. The show cause notice was issued subsequently on 31.03.2005 and the Adjudicating Authority ordered confiscation of machinery under Section 111 of the Act and imposed redemption fine and penalty. Since the goods had been released unconditionally and were not available, those could not be confiscated. The Commissioner of Customs found that proceedings for the confiscation of goods were invalid as they had been initiated by issuing show cause notice after clearance of the goods and there is no averment in the show cause notice, which may show that the appellants were the owners of the goods at the time of issuing of the show cause notice. The Commissioner of Customs also found C.E.A. No. 50 of 2008 -7- that the goods were not available and no undertaking had been obtained by the department at the time of release of goods and therefore, confiscation of the goods, cannot be maintained and no fine in lieu of confiscation can be imposed especially where the goods were neither seized nor cleared on undertaking. While passing the said order, the Commissioner of Customs has relied upon the observations of Hon'ble Apex Court in the case of M/s Weston Components Ltd. Vs. Commissioner of Customs, New Delhi (supra ), Ram Khazana Electronic vs. CC ( AIR Cargo ) Jaipur reported as 2003 (156) ELT 122 (Indel) and Chinku Exports vs. CC, Calcutta reported as 1999(112) ELT 400 (Tri.). Before the Tribunal, the contention of the revenue was that even in cases where the goods are not available, order of confiscation can be passed. However, the Tribunal vide impugned order, relied upon the observation of the Hon'ble Apex Court in the case of M/s Weston Components Ltd. Vs. Commissioner of Customs, New Delhi (supra) and the judgment of the Tribunal in the case of Ram Khazana Electronic v. CC ( Air Cargo ), Jaipur ( supra ) and held that there is no error in the impugned orders, which are based upon the judgment of the Hon'ble Apex Court. C.E.A. No. 50 of 2008 -8- It may also be noticed here that in the case of M/s Weston Components Ltd. Vs. Commissioner of Customs, New Delhi (supra) , the goods were released to the assessee on an application made by it and on the execution of a bond by the assessee and in those circumstances, the Hon'ble Apex Court held that the mere fact that the goods were released on the bond being executed would not take away the power of custom authority to levy redemption fine. A reading of the judgment/order of the Hon'ble Apex Court in M/s Weston Components Ltd. Vs. Commissioner of Customs, New Delhi (supra), would show that the Apex Court has taken the view that redemption fine can be imposed even in the absence of the goods as the goods were released to the appellant on an application made by it and on the appellant executing a bond. Since the goods were released on a bond the position is as if the goods were available. The ratio of the above decision cannot be understood that in all cases the goods were permitted to be cleared initially and later proceedings were taken for under-valuation or other irregularity, even then redemption fine could be imposed. We are, therefore, not inclined to accept the contention raised by the appellant on this issue and set aside the redemption fine. C.E.A. No. 50 of 2008 -9- The reliance of learned counsel for the revenue upon the provisions of Section 125 of the Act is also misconceived. Section 125 of the Act is applicable only in those cases which have been cleared by the concerned authorities subject to furnishing undertaking/bond etc. However, in the present case, admittedly, the goods were cleared by the respondent-authorities without execution of any bond/undertaking by the assessee. Thus, in view of the fact and circumstances of the case, we find no error in the impugned orders. No substantial question of law arises for our determination in the present appeal and the same is hereby dismissed. ( RAKESH KUMAR GARG ) JUDGE ( SATISH KUMAR MITTAL ) JUDGE April 23, 2008 dinesh