COMMISSIONER OF CUS. (EXPORT) Vs. SABINA ENTERPRISES

JUDGEMENT

(1.) REVENUE is in appeal against Order -in -Original No. 44/2013/CAC/CC(E)/YG/GR.VII, dated 26 -3 -2013 passed by the Commissioner of Customs (Export), New Custom House, Mumbai. In the impugned order, the learned adjudicating authority has held in para 23(ii) that the goods already imported and cleared under five bills of entries mentioned therein are not available for confiscation nor were they seized and released against bond; therefore, the adjudicating authority has refrained from confiscating the said goods and also imposing any redemption fine thereon. It is against this part of the order the Revenue is in appeal before us.

(2.) IN the appeal memorandum it has been urged that, in the present case, the goods were imported under DEEC scheme vide Notification No. , dated 10 -9 -2004. The said scheme envisages certain end -use. M/s. Sabina Enterprises did not fulfil the end -use conditions, thereby violating the provisions of Notifications as also the scheme. Therefore the goods are liable to confiscation under the provisions of Section 111(d) and 111(o) of the Customs Act, 1962 since the clearance have been allowed on execution of bond and bank guarantee in terms of the DEEC scheme, the adjudicating authority should have confiscated the goods and given an option to the importer to redeem the goods on payment of fine. This has not been done in the instant case and, therefore, the impugned order is defective in not confiscating the goods and not allowing the said goods to be redeemed on payment of fine.

(3.) WE have carefully considered the submissions made in the appeal memorandum as reiterated by the learned AR. The case against M/s. Sabina Enterprises is that they have disposed of the goods without fulfilling the end -use conditions. The goods are not available nor the person who own the goods now are known to the department. Section 125(1) of the Customs Act stipulates that whenever confiscation of any goods is authorised by this Act, the adjudicating authority should give an option to the owner of the goods or, where such owner is not known, the person from whose possession/custody, such goods have been seized, an option to pay in lieu of confiscation such fine as the officer thinks fit. In other words, the option to redeem has to be given to the owner or to the person from whose possession the goods have been seized. In the case before us, the details of both these persons are not known nor the goods are available for confiscation. In these circumstances, we do not find any infirmity in the order wherein the adjudicating authority has correctly refrained from imposing any fine. Thus, we find no merit in the appeal filed by the Revenue and accordingly the same is dismissed.