COLLECTOR OF CUSTOMS Vs. TRIMURTI ENTERPRISES

JUDGEMENT

(1.) THIS is an appeal filed by the Collector of Customs, Madras against the Order -in -Original dated 27 -11 -1989 passed by the Additional Collector of Customs, Madras. The appeal has been filed as directed by Central Board of Excise and Customs vide their Order No. 93 -R dated 4 -10 -1990 in exercise of the review powers under Section 129D(1) of Customs Act. The point agitated in the appeal is that while Additional Collector had agreed with the proposal in the show cause notice for enhancement of the assessable value from the declared value of Rs. 1,76,837/ -to Rs. 4,04,604/ - he did not confiscate the goods under Section 111(m) and 111(d) of Customs Act, 1962 read with Section 3(2) of Import and Export (Control) Act, 1947. It is urged in the appeal that the charge of mis -declaration of value having been upheld leading to the enhancement of the assessable value, the Additional Collector should have accepted the proposal to confiscate the goods and impose fine in lieu of confiscation for permitting the respondent to redeem the goods. The failure to confiscate the goods and giving an option to redeem them on payment of fine in lieu of confiscation has been stated to be not legal and proper leading to the filing of the present appeal.

(2.) THE notice of hearing sent to the respondent at the address indicated in the impugned order passed by the Additional Collector has been returned by the postal authorities with their remark that there is no such company at the address shown. While we agree that adjudicating authority should have considered confiscation action particularly in view of the large difference in value which he himself accepted though for the limited purpose of duty only, we are not inclined to reopen the matter at this stage by way of imposing redemption fine. It is also noticed that the appeal does not seek any relief by way of imposition of penalty on the respondent. Imposing any fine in lieu of confiscation presupposes confiscation of the goods in the first instance. The goods involved in the present case had been imported in the year 1989 and the impugned order has been in November 1989. Confiscation of the goods can be ordered only where the goods are available. In their absence any alternative action can only lie in terms of any bond or guarantee taken by the department while ordering release of the goods. There is no indication of the goods having been released on any bond or guarantee. In the circumstances, the exercise of imposition of fine in lieu of confiscation in respect of goods which are also not available for confiscation would be an exercise in futility. We, accordingly, dismiss the appeal by the department.