TMI Blog2007 (4) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... held that there was misdeclaration, it may be due to the fact the value of the cars keep on fluctuating in a short duration - There is also no contrary finding that the appellant is not going to use the car - redemption fine and penalty appears to be on higher side and is to be reduced. Appeal allowed in part. - C/360/2007/Mum - A/674/2007-WZB/C-IV/(SMB) - Dated:- 26-4-2007 - Shri M.V. Ravindran, J. REPRESENTED BY : Shri S.N. Kantawala, Advocate, for the Appellant. Shri C. Lama, SDR, for the Respondent. [Order]. This appeal is directed against the order-in-original dated 18-4-2007 vide which imported car was confiscated and an option of redeeming the same was given on payment of redemption fine for re-export and penalty was imposed on the appellant. 2. The relevant facts that arise for consideration are that the appellant imported a Toyota Vehicle and arranged to file Bill of Entry for clearance of the said car. As per examination instructions, the examining officer on verification, found that the imported vehicle did not comply with the conditions as laid down in the Import Licensing Note to Chapter 87 of the ITC (HS) Policy, more specifically para 2(I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose are imported without homologation certificate were after confiscation cleared for home consumption on payment of fine in lieu of confiscation. It was submitted that the fine and penalty imposed on the appellant is excessive, as the appellant has imported the car for his personal use. 4. The learned SDR submits that the confiscation of the car under Section 111(d) is correct, as the said car would be a prohibited article in the absence of homologation certificate. It was submitted that there is specific requirement for submission of the homologation certificate, which is indicative of roadworthiness of the car that is being imported. It was submitted that appellant having not produced the same has violated the conditions of the ITC (HS) policy hence the confiscation of the car as being prohibited is correct. It was submitted that the value declared by the appellant is also not in accordance with the book maintained by the authorities. He submitted that the provision of the Section 125 gives discretion to the adjudicating authority to impose fine in lieu of confiscation, which in itself gives discretion for imposing the condition of redeeming the same for re-export. It was subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o impose fine in lieu of confiscation, than it has to be accepted that the adjudicating authority has exercised an option which will allow the goods for home consumption, despite there being shortcomings. The issue whether the said confiscated goods under Section 111(d) can be considered for release on payment of fine, was before the Larger Bench of the tribunal in the case of A.K. Jewellers v. Commissioner of Customs, Mumbai as reported in 2003 (155) E.L.T. 585 wherein the bench held as under : After going through the provisions of Section 125 of the Customs Act, we find that provisions of this section do not specifically provide that an option may be given to redeem the goods for re-export. It empowers an adjudicating authority in case of goods the import or export of which is prohibited under Customs Act or under any law in force, to grant an option to pay in lieu of confiscation such fine as the said authority thinks fit. The provisions of this section equally apply to the goods to be exported as well as imported goods. Where the goods which have been tendered for export are ordered to be confiscated and an option to redeem the goods on payment of fine, it would follow that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with Sections 14 and 15 of the Customs Act. Section 12 deals with chargeability, Section 14 deals with the valuation of the goods for purposes of assessment and Section 15 deals with determination of rate of duty and tariff valuation of imported goods. In this case, we are not concerned with the valuation or the applicable rate of duty because on payment of redemption fine the petitioners had not sought clearance of the goods for home consumption. Instead the petitioners, after paying the redemption fine had requested that the goods be kept in bonded warehouse. Thereafter, the petitioners sought clearance of the warehoused goods for exportation. Since the redemption fine was already paid on the confiscated goods, the petitioners were entitled to clear the said goods either for home consumption or for re-export. 9. The constitution Bench of the Hon ble Supreme Court, in the case of Amba Lal v. Union of India as reported at 1983 (13) E.L.T. 1321 (S.C.) has held that Redemption fine - No condition can be imposed, while giving offer for redemption of goods . Respectfully following the judgment, the impugned order (in this case), imposing condition of re-export on payment of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso seen that the appellant has been consistently submitting that the imported car is for personal use and not for resale hence, no serious motive can be attached to such mis-declaration. There is also no contrary finding that the appellant is not going to use the car. In the absence of any contrary finding, to my mind the redemption fine imposed is on the higher side. Considering the fact that the appellant has discharged the duty liability in September 2006 and the car is lying in the docks incurring demurrage since then, a redemption fine of Rs. 50,000/- (Rupees fifty thousand only) would meet the ends of justice. The penalty imposed on the appellant is also reduced to Rs. 50,000/- (Rupees fifty thousand only) from Rs. 2,00,000/-. 14. Accordingly, it is held that the imported car has to be released to the appellant for home consumption forthwith and definitely not later than three days of payment of fine of Rs. 50,000/- as held by me. The appellant is also directed not create any third party interest till the expiry of the six months from the date of release of the car to them. Appeal is disposed off accordingly as indicated in above paragraphs. (Pronounced in Court) - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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