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2021 (10) TMI 719 - AT - CustomsAbsolute confiscation - import of Peas (Pisum Satvium) including Yellow Peas, Green Peas, Dun Peas and Kaspa Peas - restricted item or not - N/N. 37/2015 – 2020 dated 18.12.2019 - permission to re-export the subject goods - levy of redemption fine levied for redeeming the goods for the purpose of re-export - HELD THAT:- Undisputably, the appellants were in the path of litigation when the judgment of the Hon'ble Supreme Court was rendered. Immediately on coming to know of the judgment of the Hon'ble Supreme Court in the case of Raj Grow Impex LLP [2021 (6) TMI 778 - SUPREME COURT], they have requested for permission to re-export on 18.6.2021. The request was rejected by department vide letter dated 25.6.2021 stating that the judgment is applicable only to the parties therein. Consequent to the judgment of Hon'ble Supreme Court in the case of Agricas LLP, [2020 (8) TMI 705 - SUPREME COURT] the Hon'ble Bombay High Court vide judgment M/S. HARIHAR COLLECTIONS, M/S. RAJ GROW IMPEX LLP VERSUS UNION OF INDIA THROUGH THE SECRETARY, MINISTRY OF COMMERCE AND OTHERS [2020 (10) TMI 830 - BOMBAY HIGH COURT] gave directions for release of the goods. This was appealed before the Hon'ble Supreme Court and the appellants were awaiting the outcome. The Hon'ble Supreme Court in the case of Raj Grow Impex LLP case, after considering all aspects has granted permission to the importer to re-export. The very same relief cannot be denied to the appellants without cogent reasons. A party who has not been able to cross the miles should not be discriminated only for the reason that they did not join in the litigation. The directions are intended to resolve the dispute for importers who are similarly placed. We therefore are of the considered opinion that the appellants have to be granted permission to re-export the goods. We hold that the order of the Commissioner (Appeals) requires modification to this extent. Levy of redemption fine levied for redeeming the goods for the purpose of re-export - HELD THAT:- The appellant has not filed any appeal against such order of levy of redemption fine. This order has attained finality as against the appellant with regard to levy of redemption fine. Penalty - HELD THAT:- The appellant has not challenged the order passed by the adjudicating authority imposing penalty of Rs. One crore. There are no grounds to disturb the said penalty as the same has attained finality. In the present case, the Hon'ble Supreme Court has categorically held that there cannot be any bonafide belief when the importers have taken their chance to import the goods. In such circumstances, we do find that the appellant stands any favourable chance for issue of a certificate of waiver of demurrage charges. This issue is found against the appellant. The impugned order passed by the Commissioner (Appeals) is modified to the limited extent of allowing the appellants to re-export the impugned goods on payment of redemption fine of Rs. Two crores. The imposition of penalty of Rs. One crore is sustained - appeal allowed in part.
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