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2020 (10) TMI 232 - AT - CustomsClassification of goods imported - whether the goods imported are calcareous stone ‘other than marble’ which could be allowed to be imported only against SIL during the relevant period or the goods are “marble” as claimed by the appellants? - Confiscation - Redemption Fine - Penalty - HELD THAT:- In the de novo adjudication, learned Commissioner after considering the report of GSI and evidence of cross-examination of one of the Officer of GSI, held that the imported goods are not ‘marble’ but ‘other calcareous stone’. In arriving at the conclusion, the learned Commissioner heavily relied upon the judgment of the Hon'ble Supreme Court in the case of AKBAR BADRUDDIN JIWANI VERSUS COLLECTOR OF CUSTOMS [1990 (2) TMI 50 - SUPREME COURT] - there are merit in the observation of the Ld. Commissioner. No plausible argument was advanced on behalf of the appellants in support of their claim that the judgement of Hon’ble Supreme Court in the above case is distinguishable and not applicable to the case. Also, as observed by the ld. Commissioner and submitted by the Ld. AR for the Revenue that even though the appellants have raised an alternative argument that in the common parlance the goods imported by them is known as marble, but they failed to produce any evidence to substantiate the said claim. Thus, in absence of sufficient proof the said alternate plea also cannot be acceptable. Therefore, the goods imported by the appellants are not ‘marble’ but ‘calcareous stone other than marble’ which requires specific import licence at the relevant time. Whether there is violation of the relevant provisions of law on import goods? - contention of the appellant is that all these goods imported into India after 8.5.1999, hence insisting specific import licence only for the reason that the shipment were done prior to the said cut off date i.e. 8.5.1999 is not tenable in law - HELD THAT:- There are no merit in the said contention of the appellants in as much as the issue is settled in a series of cases including in the cases by the Hon’ble Madras High Court in M/S. ROYAL IMPEX VERSUS THE COMMISSIONER OF CUSTOMS, THE ASSISTANT/DEPUTY COMMISSIONER OF CUSTOMS, GROUP -1 [2019 (3) TMI 312 - MADRAS HIGH COURT], & M/S. AGRO 1 STOP REP BY ITS PROPRIETOR VERSUS THE COMMISSIONER OF CUSTOMS, THE ASSISTANT/DEPUTY COMMISSIONER OF CUSTOMS [2019 (3) TMI 1343 - MADRAS HIGH COURT] and Bombay High Court in SIDDHI VINAYAK, VERSUS THE UNION OF INDIA THROUGH THE SECRETARY, MINISTRY OF COMMERCE, DEPARTMENT OF COMMERCE, THE DIRECTOR GENERAL OF FOREIGN TRADE, THE COMMISSIONER OF CUSTOMS (IMPORT) , THE DEPUTY COMMISSIONER OF CUSTOMS, (IMPORT) , [2019 (4) TMI 344 - BOMBAY HIGH COURT], whereunder it is held that the date of shipment is relevant for compliance and not the date of import. Confiscation - HELD THAT:- The Ld. Commissioner has held that the imported goods have been declared as marble but on examination found to be not of ‘marble’ and is liable for confiscation under section 111(m); also since at the time of its shipment the appellant did not have specific import license, the goods are liable for confiscation under section 111(d) of Customs Act, 1962 - This Tribunal considered similar issue in case of M/S JUST MARBLE, M/S VAISHNO MARBLES VERSUS COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI [2016 (12) TMI 823 - CESTAT MUMBAI] and CLASSIC MARBLE VERSUS COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI-I [2010 (11) TMI 920 - CESTAT MUMBAI] and JAI BHAGWATI IMPEX PVT LTD VERSUS COMMISSIONER OF CUSTOMS & CENTRAL EXCISE, GOA [2017 (3) TMI 490 - CESTAT MUMBAI], held that in absence of SIL on import of the calcareous stone, the same are liable for confiscation and attracts penalty - there are no reason to interfere with the said finding of Ld. Commissioner Redemption fine - Penalty - HELD THAT:- This Tribunal in similar circumstances, in the case of GURU KRIPA MARBLES VERSUS COMMISSIONER OF CUSTOMS, NHAVA SHEVA [2006 (5) TMI 237 - CESTAT, MUMBAI] following the judgement of Hon’ble Bombay High Court in COMMISSIONER OF CUSTOMS, NHAVA SHEVA VERSUS MARMO CLASSIC [2003 (7) TMI 75 - HIGH COURT OF JUDICATURE AT BOMBAY], later approved by the Hon'ble Supreme Court reported as COMMISSIONER OF CUSTOMS (IMPORT) VERSUS STONEMAN MARBLE INDUSTRIES & ORS. [2011 (1) TMI 15 - SUPREME COURT] held that the redemption fine be restricted to 20% of CIF value and penalty to 5% of the said value. In the facts and circumstances of the case, ends of justice would meet if the fine and penalty is reduced to 20% and 5% respectively. The impugned orders are modified to the extent of reduction of fine and penalty to 20% and 5% respectively, and all the appeals are remanded to the adjudicating authority to calculate the redemption fine and penalty accordingly - Appeal allowed by way of remand.
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