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TMI Blog2006 (9) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... rectors of the Importer Company. The notice was adjudicated by the Commissioner of Customs, who ordered confiscation of the goods under the provisions of Sections 111(d), (f) and (n) of the Customs Act, 1962 with option to redeem the same on payment of fine of Rs. 125 lakhs, and also imposed penalty of Rs. 5 lakhs on the importer. He dropped the proceedings against co-noticees. The importer is in appeal against the confiscation and penalty, while the Revenue in its appeal seeks enhancement of fine and penalty on the importer and imposition of penalty on its Directors, of the Importer company. 2. The Tribunal had earlier disposed of these appeals by Final Order Nos. A/850 to 853/WZB/05/CI, dated 18-7-05, wherein, following the orders passed by the Northern Zonal Bench of the Tribunal in the case of the same importer covering import of identical goods, the redemption fine was reduced to 30% and the penalty was enhanced to 5% of the cif value of the goods. Aggrieved by this order, the Revenue preferred customs appeal No. 13 of 2006 before the Hon'ble Mumbai High Court which by its Order dated 21-3-2006 remitted the matter back to the Tribunal for fresh decision as under :- "We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich we shall consider first. The applicants submit that the import of second-hand diesel engines was a bona fide import which was duly covered by SIA approval and that capital goods import list was attested by SIA, that no redemption fine can be imposed by the present proceedings as no margin of profit accrued to the importers. They also submit that the Customs authorities have already auctioned 248 diesel engines even during the pendency of Writ Petition No. 1127 of 1997 before the Bombay High Court challenging the auction. They therefore, seek direction from the Tribunal for receipt of the auction proceeds together with interest. They further submit that the clarification given by the SIA on 6-11-96 is against the expressed language of the licence granted to them permitting import of diesel engines of 1000 - 2500 CC capacity. Lastly, they raise the ground that no penalty can be imposed upon them in the light of the fact that their import was bona fide and on the strength of the permit granted by the SIA. 4. Ld. D.R. does not raise any objection to the admission of the Misc. application. The additional grounds are either in furtherance on the grounds already raised in the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion fine is to wipe out the importer's margin of profit and since in the present case, the certificate of Chartered Accountant shows that the appellants actually suffered a loss, ordinarily, no redemption fine is called for Chartered Accountant's Certificate is reproduced below :- "We audited the accounts for year ending 31st March, 1996 and onwards of M/s. La Grande Projects Ltd. having its Registered Office at 8, Camac Street, Kolkata and Corporate Office at New Delhi, as an statutory auditors of the company and certify that that the Annual Return required under the provisions of the Companies Act, 1956 to be filed with the Registrar of Companies were filled with the Registrar of Company, West Bengal at Kolkata along with Balance Sheet and Profit & Loss Account for respective years. The company sold 1421 units of imported used Diesel Engine which have been account for in the above annual accounts. The cost of import including various charges and expenses of the same has been given in the annexed statement, based on the accounts of the company and Balance Sheets & Annual Return filled with the Registrar of Company and the informations and explanations given to us and records pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the margin of profit was 169% , whereas, the redemption fine imposed was only 71% and the auction sale could not provide the correct criterion as the price fetched therein does not represent standard market price. The ld. D.R., relied upon the earlier order of the Tribunal dated 5-8-02, wherein the penalty was increased from Rs. 5 lakhs to Rs. One crore to support his plea for enhancement of the penalty. However, we are unable to accept the contention of the D.R. that LMV was not challenged as we note from para 32(1) of page 36 of the Adjudication order that the importers have challenged the LMV by submitting as "In the Panchanama the value is Rs. 5,84,15,000/- and market value is Rs. 11,68,900/-, whereas in this show cause notice the CIF value is admitted to be Rs. 1,73,47,655/-. Therefore, the market value has to be in the same proportion and it should work out to Rs. 3,46,95,310/-". 9. As regards the contention of the ld. D.R. that the department had conducted market enquiry before arriving at the local market value, no such enquiry report has been brought on record. There is no mention of any such report being relied upon in the list of relied upon documents and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2005 and directed the Tribunal to decide the case on merits and pursuant to such direction, the Tribunal has disposed of the appeals of importers by order dated 18-7-05 which has now been remanded by Hon'ble Bombay High Court order dated 21-3-06 and no reliance can be placed on an order which is no longer in existence. 10. We also note that the importers are not repeated offenders. 4000 diesel engines had been imported on the basis of capital goods list permitting import of used small diesel engines with accessories at three different places i.e. Goa (20 containers) ICD, Pitampur (5 containers) and Mumbai (15 containers) forming the subject matter of the present appeals. In other words, the imports are under a single capital goods list. Keeping in view the totality of circumstances particularly the fact that the importers have suffered a loss and also the fact that there is nothing on record to discredit the Chartered Accountant's certificate, we reduce the redemption fine to 10% of the cif value, as we hold that this is sufficient to meet the ends of justice and it is appropriate in the present case in the light of the Tribunal's earlier orders in the case of CC, Calcutta v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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