TMI Blog1998 (12) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... e 2nd-hand machines could not be imported under the OGL. Relying upon the advice given in an earlier case by the officers of the DGFT, he held that the licences in the possession of the appellants could not cover the importation. He ordered confiscation of the machines. Observing that the machines had already been provisionally released, he specified a sum of Rs. 75,000/- to be appropriated from the bank guarantee furnished by the importers. He imposed a penalty of Rs. 25,000/- on the importing firm as also of Rs. 5,000/- each on three partners thereof. The present appeals have been filed by the Revenue. The grounds, as given in the appeal memorandum, read as follows : (i) The Commissioner has held that the importer was not an actual u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the D.R. that no further time would be given. Today also, the ld. D.R. claimed that he was yet to receive some more information. It was, however, considered appropriate that the proceedings be continued in view of the caution already exercised by the Bench. 3. Shri A.M. Tilak, ld. D.R. reiterating the grounds, claimed that as per the information given by the Jurisdictional Commissioner, the margin of profit in resale of such machines at the material time, was about 100 per cent. The fine imposed, on the other hand, was about 16 per cent. Citing the judgment of Tribunal in the case of P.K. Himatsingka Co. v. C.C., Calcutta, reported in 1994 (72) E.L.T. 713, he stated that the relationship between the margin of profit and the quantum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposable where the option to redeem the goods is given. The formula for the maximum fine to be prescribed is given in the proviso to sub-section (1). The upper limit is the market price of the goods minus the duty chargeable on such goods when imported. Two variables are, therefore, required. First, the duty chargeable and second, the market price. In prescribing the fine, the Commissioner has not given his reasons for determining the figure of fine. But then such information is lacking, in the appeal memorandum also. It is claimed that higher quantum of fine was required, but nothing else is forthcoming from the appeal memorandum. Ld. D.R. submitted that at the material time, market value was such as to show a 100 per cent margin of prof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DGFT was taken which opinion established that the imports were unauthorised. However, the Commissioner s order does not say whether the unauthorised importation was established in the earlier case. In the last paragraph of his deliberations, he mentioned that for the earlier imports, a show cause notice was issued on 18-1-1990. It does not state whether in subsequent adjudication, the offence was established against the importers. If it was established then there was a reason and scope for levy of deterrent penalty for a repeat offence. 8. This lacuna in the impugned order could have been put in the right perspective and corrected if the appellant Commissioner had given details of the proceedings subsequent to the show cause notice date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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