SHABNAM SYNTHETICS Vs. COMMISSIONER OF CUSTOMS, AHMEDABAD

JUDGEMENT

(1.) Appellants have made a prayer to decide the matter on the basis of records. Accordingly, we have heard ld. SDR and have gone through the impugned order.

(2.) AS per facts on record, appellant is a 100% EOU. Inasmuch as they removed the goods without any duty paying documents, proceedings were initiated against them which resulted in confirmation of demand of duty to the tune of Rs. 3,50,167/ - vide an order passed by the Jt. Commissioner. He also upheld the confiscation of the goods with redemption fine of Rs. 1 lakh and imposed penalty. Being aggrieved with the said order appellant filed an appeal before Commissioner (Appeals), who set aside the demand of duty on the ground that the adjudicating authority was not having jurisdiction to confirm the demand to the tune of Rs. 3.50 lakhs (appx.). However, confiscation with an option to redeem the same was upheld along with upholding of imposition of penalty.

(3.) AS a result of passing of the order by the Commissioner (Appeals), appellant filed a refund claim of duty, which was originally deposited by them. The Asst. Commissioner, vide his present impugned order rejected the refund claim on the ground that duty confirmation under Section 28 was set aside by Commissioner (Appeals) but the option to redeem the goods was upheld in terms of the provisions of Section 125. When such option is exercised by the assessee, the same has to be exercised on payment of fine as also duty in terms of Section 125(2) of the Customs Act, 1962. Admittedly the appellants have exercised their option to redeem the goods and as such duty is required to be paid in terms of provisions of sub -section (2) of Section 125, which do not require specific confirmation of demand of duty. The Honble High Court of Bombay in the case of M/s. Bombay Hospital Trust v. CC (ACC), Mumbai [2006 (201) E.L.T. 555 (Bom.)] and in the case of CC (IMP), ACC, Sahar v. Wockhardt Hospital and Heart Institute [2006 (200) E.L.T. 15 (Bom.)] has held that such duty payment is required to be made in terms of Section 125(2) of the Customs Act. As such, we find no merits in the appeal and reject the same. (Pronounced in Court on 25 -9 -2008)