TMI Blog2010 (5) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... ence. Inspite of this, if the petitioners are repeatedly including in importing marbles without licence, or subsequently obtain licence to cover up illegal imports then it would be a duty of writ Court to arrest such tendency prevailing amongst the importers of the goods. - C/288/2009 - 252/2010 - Dated:- 7-5-2010 - Ms. Jyoti Balasundaram, Vice-President and Dr. Chittaranjan Satapathy, Member (T) REPRESENTED BY : Shri A.K. Jayaraj, Advocate, for the Appellant. Shri C. Dhanasekaran, SDR and Ms. Indira Sisupal, JDR, for the Respondent. [Order per : Chittaranjan Satapathy, Member (T)]. - The appellants in this case have been penalized to the extent of Rs. 13,70,000/- alter taking note of the fact that they are habitually involved in violation of rules and regulations warranting a heavy penalty and also that the instant import is the fourth such offence committed by the appellants. The adjudicating Commissioner has also imposed a redemption fine of Rs. 10,25,000/- after confiscating the impugned goods imported by the appellants. He has also rejected the declared value of US $ 59,870 (C F) and has redetermined the customs value to be US $ 69,395 (C F) on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without payment of full duty and without payment of fine and penalty. For this purpose, he wants the Tribunal to invoke its powers under Rule 41 of the CESTAT (Procedure) Rules, 1982. We find that the said Rule 41 quoted by the learned counsel does not speak of interim release of goods pending decision in appeal. Rule 41 is reproduced below :- "Orders and directions in certain cases. - The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice." We had asked the learned counsel to produce before us any order passed by the Tribunal under the said Rule 41 ordering release of the goods before hearing of an appeal. He took adjournment for the same but on the next date of hearing he fairly stated that he could not find any such order passed by the Tribunal in the past. He has, however, submitted a copy of the order of the Tribunal bearing Stay Order No. 368/2006 dated 10-4-2006 [2006 (202) E.L.T. 79 (Tribunal)]) where the Tribunal has allowed provisional redemption of confiscated goods on payment of duty and redemption fine without insisting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levied, does not in any way take away the inherent power of the Appellate Tribunal to pass such interim order as are necessary. This is only re-stated in Rule 41 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982. Therefore, the contention of the learned counsel for the respondent/writ petitioner that there is no power vested in the Customs, Excise and Gold (Control) Appellate Tribunal to pass an interim order directing the release of the goods, therefore, it has become necessary to approach this Court for relief, cannot be accepted. However, the CEGAT while passing interim order, it has to bear in mind the interest of both the parties and availability of goods if the same are to be confiscated at the end of the proceedings, unless the goods are of such nature which are subject to natural decay or perishable, in such a case, it has to pass appropriate order for disposal." 8. Accordingly, we have re-examined the matter in greater detail in the light of the aforecited decision of the Hon'ble Madras High Court in Madras Electro Castings (supra), even though we had taken a prima facie view at the stay stage earlier that the impugned goods were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any such distinction under the aforecited notification dated 19-10-2005. It, plain and simple, restricts import of secondhand photocopier machines without a licence. It does not refer to any particular kind of photocopier nor it refers to any specific Tariff Heading or any HSITC Heading. Therefore, the intention of the Government seems to be clear to restrict in public interest import of secondhand photocopier machines of all kinds without a licence. When the restriction is for "photocopier machines' it would take within its ambit both analogue photocopier machines and digital photocopier machines. In case of both the machines, the input and the output, (that is, the material to be photocopied and the photocopy produced) are the same. Obviously, each machine adopts a different technology of processing, the latter one adopts a newer technology. In the case of analogue photocopier machines, the photocopying apparatus incorporates an optical system which projects an optical image of an original document on light sensitive surface which is then printed. In the case of a digital photocopier machine, the original image is scanned for converting the optical image into digital form which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India - 2004 (166) E.L.T. 318 (Bom.) which held as follows : "The petition is directed against the final order dated 18th December, 2003 incorporated at Exhibit-D to the petition. The challenge is at the instance of the petitioners wherein the fine and penalty is levied upon for importing marbles without the licence. 2. Whenever, petitioners import marble without licence, they pay fine and penalty, as may be levied under the provisions of the Customs Act. 3. In the past similar consignments were imported by the petitioners and in spite of levy of fine and penalty the petitioners continued to import marble without any licence. In other words, penalty and fine did not get as deterrent to stop further illegal import. In other words, petitioners continued to indulge in illegal import of marble without licence and litigation ensued therefrom was used to get fine and penalty reduced on technical legal pleas. This petition is product of such illegal activities of the petitioners. An act constituting import of marble without licence has given rise to the present litigation which reached up to the Tribunal. The Tribunal was pleased to allow the release of goods subject ..... X X X X Extracts X X X X X X X X Extracts X X X X
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