TMI Blog1999 (3) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... e found that the goods imported were nothing other than the ordinary yarn it asked the Chief Controller of Imports as to the scope of the licence. That authority referred to the Custom House the application for licence made by the appellant. This application was for super multifilament polyester yarn with fine count and fine filament having normal and profiled cross-section and which has denier per filament less than 1. Since, according to the Custom House, the goods did not conform to this specification, notice was issued; proposing confiscation of the goods under clause (d) of Section 111 as being imported without a licence and penalty on the importer under Section 112. The importer, in the reply to the notice and at the hearing contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant contends that the goods imported was speciality polyester yarn manufactured by EMS Inventa according to special technology and hence covered by licence. He contends in the alternative, that appellant had made a loss on the goods and hence no fine is imposable. It is also pleaded that if the appellant imported the goods as a letter of authority holder it would have been entitled to a profit as a trader. 4. We are unable to agree that the goods qualify for consideration as speciality yarn. In the absence of any known definition of such yarn reference has to be made to the details of yarn that the appellant has asked for permission to import; this is what the licensing authority in fact has understood. The correspondence between t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be confirmed. 6. The next issue is the question of margin of profit. The Collector has fixed a redemption fine at 10% of the total value of the consignment. This is disputed on two grounds; the first is that the expenses it actually incurred in the import resulted in loss to appellant; the second, this in any event the appellant could have imported the goods as a letter of authority holder in which case could have made profit at least 10%. It is contended that since the object of redemption fine is to wipe out any profit that the importer makes by unauthorised import, so as to deny the benefit of wrongful importation, no fine is called for. 7. In the course of arguments number of decisions have been cited by both sides on this aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the importation are sufficient to waive fine; no longer hold good law in the light of the Supreme Court judgment. Bona fide is only one of the aspect to be considered. 9. There is however, a view that although Section 125 of the Act specifies as maximum redemption fine the market price of the goods less the duty payable, the redemption fine must be fixed with the object of wiping out any profit that the importer would have made by its illegal importation. The Tribunal s decision of the Delhi High Court in Jain Exports Pvt. Ltd. v. UOI; and the Tribunal decisions in Ingersoll-Rand (India) Ltd. v. Collector of Customs - 1989 (39) E.L.T. 454; and Silver Enterprises v. Collector of Customs - 1989 (44) E.L.T. 770 express this view. With the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere in possession of knowledge of such intended or impending closure it could not have planned, having regard to the time taken to obtain the licence, to import the goods, at a time when there was a shortfall in production. The Collector s opinion is nothing more than conjecture. Even so, however, we do not consider that there exists a situation to hold that fine should be limited to the margin of profit. We therefore, decline to interfere with the finding of the Collector on this aspect. 11. The Collector has imposed a penalty of the level of 5% of the value of the goods on the ground that appellant misdeclared the goods as speciality yarn. The notice does not propose the confiscation of the goods under Section 111, clause (m) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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