1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CUSTOMS APPEAL NO. 70 OF 2009 The Commissioner of Customs (Import) ...Appellant. Vs. M/s Rishi Ship Breakers ...Respondent. ---- Mr. R. Ashokan, for the Appellant. Mr. D.H. Nadkarni with Mr.V.N. Ansurkar, for the Respondent. ---- CORAM : F.I. REBELLO & D.G. KARNIK, JJ. DATED : 22ND SEPTEMBER, 2009 P.C. 1. Mr. Yogesh Nadkarni, waives service on behalf of respondents and undertakes to file Vakalatnama. The statement is accepted. 2. The only point of law which needs consideration is “whether in the facts and circumstances of the case and in law the CESTAT is right in dismissing the appeal of revenue and holding that no redemption fine can be imposed and penalty levied when the goods are physically not available for confiscation.” 3. In so far as redemption fine is concerned, we have, in the facts and the circumstances of the case, taken a view in the case of The 2 Commissioner of Customs (Import) Versus M/s Flurose Creation INC. in Customs Appeal No.66 of 2009, by judgment dated August 25, 2009 that as the goods are not available for confiscation no redumption fine can be imposed. This question therefore does not arise. In so far as penalty is concerned, we find that the Commissioner of Customs reduced the penalty from Rs.60,000/- to Rs.5,000/-. It is contended on behalf of respondents that before the Tribunal the issue of penalty was not at all involved. We find that no substantial question of law is involved. In the light of that appeal dismissed. We further make it clear that we are not concerned whether in such circumstances penalty could be imposed when the redemption fine for the same cannot be imposed. (D.G. KARNIK, J.) (F.I. REBELLO, J.)