JUDGMENT : Sangeeta K. Vishen, J. 1. The present tax appeal under the provisions of section 130 of the Customs Act 1962 (hereinafter referred to as “the Act of 1962”) has been filed challenging the judgment and order dated 7th August, 2018 passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad in Appeal No.C/10229/2015 by proposing the following question stated to be a substantial question of law: - “Whether Ld. Tribunal erred in wrongly interpreting and applying provisions of sec.115(2) of The Customs Act, 1962?” 2. The brief facts, as culled out from the record of the captioned appeal, are as under: - 2.1 M/s. Global Cambay Marine Service Private Limited respondent herein (hereinafter referred to as “the respondent”) is engaged in the activity of supply of ship store, water bunker and other items to the vessels calling at various ports of Gujarat. Amongst the fleet of vessels, the respondent has one utility vessel boat named MV Al-Vard, which was used by the respondent for towing of sea plying vessels. 2.2 An intelligence was received by the office of the Directorate of Revenue Intelligence, Ahmedabad that the Director of the respondent has been involved in illegal import/smuggling of diesel oil by the barges and tugs deployed at Hazira Port, Surat. Intelligence also suggested that utility vessel boat MV Al-Vard was used in illegal import/smuggling of diesel oil and has been retained as bunker for its use. The investigation by the office of the Directorate of Revenue Intelligence, revealed that the respondent illegally imported diesel oil in the tug MV Al-Vard and the quantity of the said diesel was ascertained by visit on the said boat at the Jetty of Larsen and Tubro. Owing to the aforesaid investigation, actual quantity of diesel was ascertained through sounding of the bunker tanks in the vessels by the engineer and surveyor in the presence of Master of the vessel and was found to be 103.657 MT. On inquiry, the Master confirmed that they have taken 150 MT of diesel oil from one foreign going vessel Norgas Orinda on 6th November 2010 on the instructions of one Shri Zohar Mallampattiwala, director of the respondent and that they have consumed some of it in voyage. On inquiry, the Master confirmed that they have taken 150 MT of diesel oil from one foreign going vessel Norgas Orinda on 6th November 2010 on the instructions of one Shri Zohar Mallampattiwala, director of the respondent and that they have consumed some of it in voyage. 2.3 As the tug was used in the improper import of diesel oil with willful intention to use the same in the tug MV Al-Vard, the tug MV Al-Vard valued at Rs.6,75,00,000.00/- along with excess stock of 103.657 MT Valued at Rs.51,82,850/- which was not declared, was placed under seizure vide Panchnama dated 19th February, 2012 with reasonable belief that the same was liable for confiscation under sections 115(2), 111(f) and 111(j) of the Act of 1962. 2.4 Owing to the aforesaid investigation, a common show cause notice F.No.DRI/AZU/JRU/09/2012/252/526 to 531 dated 3rd August, 2012 was issued by the Joint Director, Directorate of Revenue Intelligence, Ahmedabad to the respondent, Director of the respondent and three others, requiring them, inter alia, to show cause as to why diesel oil as indicated therein which was imported illegally into the tug MV Al-Vard and subsequently seized should not be confiscated under the provisions of the Act of 1962. 2.5 The aforesaid show cause notice dated 3rd August, 2012 was adjudicated by the Additional Commissioner of Customs, Ahmedabad (hereinafter referred to as “the adjudicating authority”) vide order dated 25th April, 2013 whereby, the adjudicating authority while ordering confiscation, imposed redemption fine viz.: - (i) for confiscation of 103.657 MT diesel oil valued at Rs.51,82,850/-, redemption fine was imposed of Rs.13 Lakhs. (ii) for confiscation of 46.343 MT of diesel oil valued at Rs.23,17,150/-, redemption fine was imposed of Rs.6 Lakhs and (iii) for confiscation of tug AL-Vard having assessable value of Rs.6.75 Crores, redemption fine under sub-section (2) of section 115, was imposed of Rs.1.75 Crores. 2.6 Being aggrieved, the respondent and its Director and other two employees preferred appeals before the Commissioner (Appeals) which, were dismissed vide order dated 2nd April, 2014 for non compliance of the pre-deposit. The respondent and others being aggrieved, filed appeals before the Customs, Excise & Service Tax Appellate Tribunal (hereinafter referred to as 'the Tribunal') which, allowed the appeals and remanded the matter to the Commissioner (Appeals) for deciding the same on merits vide its order dated 21st November, 2014. The respondent and others being aggrieved, filed appeals before the Customs, Excise & Service Tax Appellate Tribunal (hereinafter referred to as 'the Tribunal') which, allowed the appeals and remanded the matter to the Commissioner (Appeals) for deciding the same on merits vide its order dated 21st November, 2014. On remand, the Commissioner (Appeals), passed an order dated 11th May, 2015 whereby, the appeals filed by the respondent and three others came to be dismissed and as a result whereof the order of the adjudicating authority stood confirmed. 2.7 The respondent and others being aggrieved by the said order dated 11th May, 2015, preferred appeals before the Tribunal and the Tribunal, vide its order dated 7th August, 2018, while partly allowing the appeals, passed an order inter alia reducing the redemption fine on tug MV Al-Vard to Rs.8 Lakhs; reducing the redemption fine in respect of goods to Rs.8 Lakhs and; setting aside the redemption fine of Rs.6 Lakhs as the goods were not available. The operative portion of the final order dated 7th August, 2018 passed by the Tribunal is extracted herein below: - The duty demand, interest and 25% penalty paid is maintained. The redemption fine on tug is reduced to Rs.8 Lakhs. The redemption fine in respect of goods is also reduced at Rs.8 Lakhs. The redemption fine of Rs.6 Lakhs is set aside as the goods were not available. The appeals of employees Sh. P.P. Radhakrishnan and Hanzel A. Malik are allowed. The appeal of Sh.Zoharbhai A Mallampattiwala is abated. 3. Mr.Ankit Shah, learned Senior Standing Counsel, submitted that the Tribunal while erroneously interpreting the proviso to sub-section (2) of section 115 of the Act of 1962 reduced the redemption fine on the conveyance. It is further submitted that the respondent being the owner of the tug was very well aware that the tug is being used for smuggling and it being a conveyance of the smuggled goods, was liable for confiscation. 3.1 It is further submitted that the proviso to sub-section (2) of section 115 is applicable only in cases where conveyance is used for the carriage of goods or passengers for hire. It is further submitted that the respondent was owner of the tug MV Al-Vard and the same was not hired, under the circumstances, the proviso to sub-section (2) of section 115 of the Act of 1962 is not applicable. It is further submitted that the respondent was owner of the tug MV Al-Vard and the same was not hired, under the circumstances, the proviso to sub-section (2) of section 115 of the Act of 1962 is not applicable. It is thus submitted that the Tribunal erred in applying the proviso to sub-section (2) of section 115 and further holding that the maximum fine can be an amount not exceeding the market price of the smuggled goods. 3.2 To further substantiate such contention, it is submitted that the market price of the smuggled goods was Rs.75 Lakhs and the correct value of the tug was Rs.6.75 Crores. The respondent being engaged in the supply of ships and other activities at various ports of Gujarat, was well aware of the provisions of the Act of 1962 and the act on the part of the respondent of smuggling was with the sole intention to evade payment of duty on the diesel. Thus, it is submitted that the redemption fine of Rs.1.75 Crores imposed by the adjudicating authority on the tug MV Al-Vard, commensurated with the gravity of the offence; value of the smuggled goods and value of the tug used. It is submitted that the Tribunal on the other hand, has considered the misstated value by not considering the said aspect and thereby committed a grave error in reducing the redemption fine from Rs.1.75 Crores to Rs.8 Lakhs which is not commensurate with the gravity of the offence. 3.3 It is further submitted that the Tribunal has committed an error by placing reliance on the judgment of the Supreme Court in the case of Jain Exports Private Limited reported in 1993 (66) ELT 537 inasmuch as, the facts of the present case are totally different from the facts of the said case. It is submitted that the issue involved in the case of Jain Exports pertains to violation of import policy and bill of entries. Whereas, in the present case, the respondent and others intentionally and knowingly attempted outright smuggling without filing bill of entry. It is further submitted that the respondent and others contravened the provisions of the import policy and thus, the principle laid down in the case of Jain Exports Private Limited (supra), could not have been made applicable to the facts of the present case. It is further submitted that the approach adopted by the Tribunal is erroneous. It is further submitted that the respondent and others contravened the provisions of the import policy and thus, the principle laid down in the case of Jain Exports Private Limited (supra), could not have been made applicable to the facts of the present case. It is further submitted that the approach adopted by the Tribunal is erroneous. The Tribunal ought to have appreciated that the provisions of the Act of 1962 are to curb the menace of smuggling on economy and when the respondent and three others have intentionally engaged themselves in the smuggling of the diesel, redemption fine and penalty should be commensurate with the offences and should have deterrent effect. 3.4 It is submitted that the gravity and enormity of the offence of smuggling the diesel oil, committed by the respondent and others was against the spirit of the Act of 1962 and considering the provisions of the Act of 1962, the Tribunal grossly erred in reducing the redemption fine which is not commensurate with the gravity of offence committed by the respondent. It is thus, submitted that the Tribunal erred in interpreting and applying the provisions of sub-section (2) of section 115 of the Act of 1962. While concluding it is submitted that the appeal deserves to be admitted on the substantial question of law as proposed. 4. Per contra, Mr.Paresh Dave, learned advocate for the respondent while vehemently opposing the appeal, submitted that the order passed by the Tribunal is not perverse inasmuch as, it is not the case of the appellant that the Tribunal has considered irrelevant material or that the relevant evidence has not been considered by the Tribunal. Mr.Dave, learned advocate while placing reliance on the judgment in the case of Jain Exports Private Limited (Supra), submitted that the Apex Court in the said judgment, has categorically observed that the court should have to bear in mind the totality of the circumstances and the benefit, if any, derived by the importers from the illegal import. 4.1 Mr.Dave, learned advocate further submitted that the Tribunal has rightly observed that the total quantity of the diesel seized was 103.6 MT, on which the amount of duty comes to Rs.8.78 Lakhs and therefore, the redemption fine of Rs.13 Lakhs imposed on confiscation of diesel oil was not justified. 4.1 Mr.Dave, learned advocate further submitted that the Tribunal has rightly observed that the total quantity of the diesel seized was 103.6 MT, on which the amount of duty comes to Rs.8.78 Lakhs and therefore, the redemption fine of Rs.13 Lakhs imposed on confiscation of diesel oil was not justified. It is further submitted that no error can be said to have been committed by the Tribunal in reducing the redemption fine while considering the said aspect. While adverting to the reduction of the redemption fine on confiscation of the tug MV Al-Vard it is submitted that the Tribunal, has correctly observed that the valuation of tug MV Al-Vard was wrongly considered as 6.75 Crores inasmuch as, the admitted insured value of the tug MV Al-Vard was Rs.1.90 Crores. 4.2 Mr.Dave, learned advocate placed reliance on the judgment of the Apex Court in the case of Deputy Commissioner, Dakshina Kannada District Vs Rudolph Fernandes reported in (2000) 3 SCC 306 and submitted that the Apex Court, while dealing with the provisions of section 6-A of the Essential Commodities Act, 1955, has observed that the proviso to sub-section (2) of section 115 specifically mentions that where any such conveyance is used as a means of transport in the smuggling of goods, the owner of any conveyance is to be given an option to pay in lieu of the confiscation of conveyance a fine not exceeding the market price of the goods which are sought to be smuggled, and under the circumstances the Tribunal rightly imposed the redemption fine of Rs.8 lakhs on tug MV Al-Vard. 4.3 It is further submitted that the contention raised by the appellant that the proviso to sub-section (2) of section 115 only covers the goods where conveyance is used for the carriage of the goods or passengers for hire is misconceived and without any basis. It is further submitted that going by the proviso to sub-section (2) of section 115, the Tribunal rightly concluded that the maximum fine on the conveyance can be an amount not exceeding the market price of goods which are sought to be smuggled or the smuggled goods as the case may be. It is further submitted that going by the proviso to sub-section (2) of section 115, the Tribunal rightly concluded that the maximum fine on the conveyance can be an amount not exceeding the market price of goods which are sought to be smuggled or the smuggled goods as the case may be. Thus, it is urged that the Tribunal has not committed any error and the findings recorded by the Tribunal cannot be said to be perverse and therefore, the appeal deserves to be dismissed since no substantial question of law can be said to arise in the present appeal. 5. Pertinently, before the Tribunal the respondent did not raise the dispute regarding the demand of customs duty and penalty. The respondent before the Tribunal only contested the quantum of redemption fine in respect of diesel, vessel and personal penalties imposed on the individuals. The Tribunal has accordingly decided the appeal. 6. Undisputedly, the total quantity of the diesel seized was 103.567 MT, the amount of duty whereof comes to Rs.8.78 Lakhs. So far as the non-existent goods i.e. 46.343 MT of diesel oil is concerned, the same could not be confiscated in that, the said quantity was not available. 7. It is pertinent to mention that the value of the confiscated 103.657 MT of diesel oil was Rs.51,82,850/- and the value of 46.343 MT confiscated diesel oil was Rs.23,17,150/-. So far as the non-existent goods i.e. 46.343 MT of diesel is concerned, the Tribunal, while relying upon the decision of the Larger Bench of Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Mumbai in the case of M/s. Shiv Kripa Ispat Private Limited Vs CCE & CUS, Nasik (supra) held that the goods which were not available for seizure; the confiscation of non-existent goods cannot be subjected to redemption fine. Thus, the market value of the remainder 103.657 MT should have been considered which is Rs.51,82,850/-. The Tribunal keeping in mind the totality of the circumstances and benefit derived by the respondent from the illegal import of the diesel oil reduced the redemption fine in respect of tug to Rs.8 Lakhs. Pertinently, considering the question of law raised in the present appeal, the only aspect under challenge is the applicability of the proviso to subsection (2) of section 115 and not the quantum of redemption fine imposed in lieu of confiscation. Pertinently, considering the question of law raised in the present appeal, the only aspect under challenge is the applicability of the proviso to subsection (2) of section 115 and not the quantum of redemption fine imposed in lieu of confiscation. Thus, the other grounds raised in the support of the challenge, are not germane to the controversy in issue in the present appeal and do not deserve acceptance. 8. The controversy involved in the present appeal, pertains to imposition of redemption fine in lieu of confiscation of conveyance relatable to section 115 of the Act of 1962. 9. While deciding the issue in question, section 115, is worth referring to; “SECTION 115.Confiscation of conveyances.- (1) The following conveyances shall be liable to confiscation :- (a) any vessel which is or has been within the Indian customs waters, any aircraft which is or has been in India, or any vehicle which is or has been in a customs area, while constructed, adapted, altered or fitted in any manner for the purpose of concealing goods; (b) any conveyance from which the whole or any part of the goods is thrown overboard, staved or destroyed so as to prevent seizure by an officer of customs; (c) any conveyance which having been required to stop or land under section 106 fails to do so, except for good and sufficient cause; (d) any conveyance from which any warehoused goods cleared for exportation, or any other goods cleared for exportation under a claim for drawback, are unloaded, without the permission of the proper officer; (e) any conveyance carrying imported goods which has entered India and is afterwards found with the whole or substantial portion of such goods missing, unless the master of the vessel or aircraft is able to account for the loss of, or deficiency in, the goods. (2) Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal: Provided that where any such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine not exceeding the market price of the goods which are sought to be smuggled or the smuggled goods, as the case may be. Explanation. - In this section, "market price" means market price at the date when the goods are seized.” 10. Section 115 of the Act of 1962, deals with the confiscation of conveyances. Sub-section (2) of section 115, provides that if any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or the animal. Proviso to sub-section (2) of section 115 makes a provision that where such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine not exceeding the market price of the goods which are sought to be smuggled or the smuggled goods as the case may be. Explanation to the proviso makes it clear that the market price means market price at the date when the goods are seized. 11. Explanation to the proviso makes it clear that the market price means market price at the date when the goods are seized. 11. As discussed hereinabove, the proviso to sub-section (2) of section 115, categorically provides that where any conveyance is used for the carriage of goods or passengers for hire the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance “a fine not exceeding the market price of the goods” which are sought to be smuggled or the smuggled goods, as the case may be. Clearly, therefore, the redemption fine which can be imposed in lieu of the confiscation of the conveyance should not exceed the “market price of the goods which are sought to be smuggled or smuggled goods”. 12. One of the core grounds raised by the appellants and relatable to the controversy in issue is to the effect that while reducing the redemption fine on the conveyance, the Tribunal has erroneously interpreted the proviso to sub-section (2) of section 115 inasmuch as, the proviso to sub-section (2) of section 115 is applicable only to the cases, where the conveyance is used for carriage of goods or passengers for hire for smuggling of the goods. It has been contended on behalf of the appellant that in the facts of the present case, the respondent was an owner of the conveyance and since the tug was not hired the proviso to sub-section (2) of section 115 of the Act of 1962 is not at all applicable. At this stage, the order dated 25th April, 2013 passed by the adjudicating authority, is required to be taken note of. The adjudicating authority having found that the respondent had illegally imported/smuggled 150 MT of diesel oil valued at Rs.75,00,000/- into the tug MV Al- Vard, with an intention to use the same for plying inside the sea without payment of duty thereon, confiscated the goods. The adjudicating authority also imposed customs duty amounting to Rs.12,71,406/-. Further, the adjudicating authority found that tug MV Al-Vard valued at Rs.6,75,00,000/- was found utilized in illegal import of diesel oil and ordered confiscation of the tug MV Al-Vard under sub-section (2) of section 115 of the Act of 1962. The adjudicating authority also imposed customs duty amounting to Rs.12,71,406/-. Further, the adjudicating authority found that tug MV Al-Vard valued at Rs.6,75,00,000/- was found utilized in illegal import of diesel oil and ordered confiscation of the tug MV Al-Vard under sub-section (2) of section 115 of the Act of 1962. Having observed thus, the adjudicating authority in the operative portion, ordered confiscation of tug MV Al-Vard having assessable value of Rs.6,75,00,000/- and imposed redemption fine of Rs.1,75,00,000/- in lieu of confiscation under the proviso to sub-section (2) of section 115 of the Act of 1962 on the respondent. The said operative portion relatable to the controversy raised in the appeal reads as under: - “(iii) I order confiscation of tug MV AL-Vard, having assessable value of Rs.6,75,00,000/- which is used in the illegal import of the diesel oil under section 115(2) of the Customs Act, 1962. I impose redemption fine of Rs.1,75,00,000/- (Rupees one crore seventy-five lakhs only) in lieu of confiscation under the provisions of the Customs Act, 1962 on M/s. Global Cambay Marine Service Private Limited, Surat.” 13. As is evident from the contents of the order dated 25th April, 2013 of the adjudicating authority, the adjudicating authority itself, has imposed redemption fine of Rs.1.75 Crores in lieu of confiscation of tug MV Al-Vard under the provisions of the Act of 1962. The appellant while accepting the order dated 25th April, 2013 of the adjudicating authority, applying the proviso to sub-section (2) of section 115 to the facts of the present case, did not challenge the order of the adjudicating authority before the higher forum. Thus, to that extent, the said order dated 25th April, 2013 has attained finality. Under the circumstances, it is not now open to the appellant to contend that the proviso to sub-section (2) of section 115 is applicable only in the cases where conveyance is used for the carriage of goods or passengers for hire for smuggling of the goods and since the tug was not hired the proviso to subsection (2) of section 115 of the Act of 1962 is not at all applicable to the facts of the present case. 14. 14. The Apex Court, in the case of Deputy Commissioner, Dakshina Kannada District (supra), while distinguishing the language contained in proviso to section 6-A(1) of the Essential Commodities Act, 1955 vis-à-vis the language contained in the proviso to sub-section (2) of section 115 held that the proviso to sub-section (2) of section 115 specifically mentions that where any conveyance is used as a means of transport in the smuggling of the goods, the owner of any conveyance is to be given an option to pay in lieu of confiscation of the conveyance, a fine not exceeding the market price of the goods which are sought to be smuggled and the explanation to the proviso to sub-section (2) of section 115 provides that the market price means the market price on the date when the goods are seized. 15. The Tribunal, having regard to the proviso to sub-section (2) of section 115 of the Act of 1962, has observed that the maximum fine on the conveyance can be an amount not exceeding the market price of the goods which are sought to be smuggled or the smuggled goods, as the case may be, and held that the maximum redemption fine which can be imposed cannot be more than Rs.51,82,850/-. Keeping in mind the principles enunciated by the Supreme Court in Jain Exports Pvt. Ltd. (supra), the Tribunal found that the total benefit derived by the respondent was Rs.13 lakhs, which is the duty amount; and that the respondent had deposited not only the amount of duty but also the interest payable thereon as well as penalty. The Tribunal was of the view that the redemption fine imposed was exorbitant and needed to be reduced substantially and accordingly, reduced the redemption fine on the tug to Rs.8 lakhs. 16. Thus, the Tribunal, on a correct interpretation of the proviso to sub-section (2) of section 115 of the Act of 1962 has held that the maximum fine on the conveyance cannot exceed the value of goods sought to be smuggled or the smuggled goods; and has thereafter applied the principles enunciated by the Supreme Court in Jain Exports Pvt. Ltd. (supra) and reduced the amount of redemption fine. Having regard to the facts of the case, it is not possible to say that the view taken by the Tribunal suffers from any legal infirmity so as to give rise to any question of law, much less, a substantial question of law, warranting interference. 17. The appeal, therefore, fails and is dismissed. Civil Application No.1 of 2019 In view of the dismissal of Tax Appeal No.221 of 2019, the civil application (for stay) No.1 of 2019 does not survive and hence, accordingly disposed of.