Judgment:
1. This appeal is directed against the order-in-original No. 137/2002, dated 24-7-2002 by which the Commissioner has confirmed the demand of Rs. 18,56,194/-, considering the facts that the Industrial gaskets are not eligible for all industry rate of duty drawback under sub-serial Number 84.62 of the Drawback Schedule and accordingly appropriated an amount of Rs. 18,56,194/- paid by the exporter vide MC No. 0402444, dt.
15-4-2002 and MC No. 05000687, dated 3-5-2002. He has also confiscated the goods valued at Rs. 2,41,35,655/- under Section 113(i) and (ii) and imposed redemption fine of Rs. 3 lakhs under Section 125 of the Customs Act, 1962. He also imposed penalty of Rs. 1 lakh under Section 114(iii) ibid.
2. Appearing on behalf of the appellants, Id. Counsel Shri S. Jayakumar submits that they have declared Ring Joint Gaskets and nowhere have they declared that the Gaskets were meant for automobiles. They were under the bona fide belief that Gaskets are entitled to claim Drawback as was the position prior to 1-6-2000 and it was in the back ground of this understanding, they have filed drawback claim. We have also perused certain invoices to show that they have imported only Ring joint gaskets as per ANSI B16.20 Std. He further submitted that the draw back was erroneously granted to them and the moment it was pointed out, they paid the duty amount of Rs. 18,56,194/- immediately even before the issue of show cause notice. He further submitted that the goods can be confiscated under Section 113(i) and (ii) if any goods are entered for exportation under claim for draw back which do not correspond in any material particular with any information furnished by the exporter or manufacturer under this Act in relation to the fixation of rate of draw back under Section 75. Since the goods have been correctly declared in the shipping bills which corresponds to the goods which were exported, then such goods cannot be confiscated and no penalty can be imposed on them under Section 114 of the Customs Act, 1962. These goods are not liable for confiscation under Section 113.
Ld. Counsel has come before us only to get the order set aside to the extent of confiscation of the goods and the imposition of redemption fine and penalty. He also submits that in the absence of such allegation, neither the goods can be confiscated nor any redemption fine can be imposed nor any penalty is liable to be imposed on them.
3. Heard Id. DR Shri A. Jayachandran who files a written note received from the Dy. Commissioner of Customs Review Cell, Chennai vide their letter F. No. M/337/02-Review Cell (Sea), dated 24-7-2003 in which they have relied on the judgments rendered by the CEGAT in the case of Mangala Textiles v. CC, Rajkot reported in 2001 (130) E.L.T. 705 (T) wherein it has been held that redemption fine can be imposed even if the goods were no longer in the custody of the department.
4. We have considered the submissions made by both sides and find that the goods cannot be confiscated under Section 113(i) and (ii) and no penalty can be imposed under Section 114(iii) of the Customs Act, 1962 as there is no misdeclaration by them on the goods and the duty correspond with the shipping bills, invoices, and hence there was no misdeclaration on their part. Further, prior to 1-6-2000 draw back was available to all types of gaskets. It is only from 1-6-2000 gaskets made up of composite materials and meant for automobiles alone were liable to claim draw back. Therefore, we are inclined to accept the plea taken by the ld. Counsel and we do not find this is a case of misdeclaration and the goods with the description are mentioned in the invoice and shipping bills. We, therefore, set aside that part of the order in which the goods have been confiscated and redemption fine has been imposed. Similarly as the goods are not liable for confiscation, no penalty can be imposed under Section 114(iii) of the Customs Act, 1962 on the appellants. We, therefore, also set aside the order of imposition of penalty on the appellants. The appeal is thus partly allowed. Ordered accordingly.