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TMI Blog2010 (5) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... 893/-. The duty amount payable on the reassessed value is not recorded in the impugned order passed by the adjudicating Commissioner. 2. The adjudicating Commissioner has recorded in the impugned order that the appellants requested for adjudication of the case without issue of show-cause notice and personal hearing. He has also recorded the request of the appellants that the case should be adjudicated by him taking a lenient view as the appellants had not applied for import licence for the reason that the value of the goods was insignificant. The adjudicating Commissioner has also recorded that the appellants had produced neither the manufacturer's invoice nor a Chartered Engineer's certificate from the load port confirming to Board's Circular No. 4/2008-Cus. dated 12-2-2008, and hence the impugned goods were examined by a local Chartered Engineer and that the value appraised by him was also accepted by the appellants, which is the basis for enhancement of value. 3. The appellants have filed this appeal before the Tribunal challenging the enhancement of value, imposition of redemption fine and imposition of the penalty in respect of the impugned goods. The learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the said Rule 41. The reason given in this interim order is that only duty and fine are related to the goods and not the penalty. This view expressed in an isolated interim order, is not supported by the legal provisions as penalty imposed under the Customs Act under Section 112 is conditional upon rendering goods liable to confiscation and the proceedings before the Customs authorities are proceeding in rem in relation to the offending goods in contrast to the prosecution proceedings under Section 135 of the Customs Act in a regular court of law which are proceedings in personam for awarding sentences of imprisonment and/or fine. It is also a long established practice that before release of goods from customs control, the duty, redemption fine in lieu of confiscation and penalty are collected by the customs authorities prior to such release. Commissioners (Appeal) and the Tribunal have only discretionary power to waive the requirement of predeposit of duty, interest and penalty in case of undue hardship for the purpose of hearing an appeal under Section 129E but not for release of goods prior to deciding an appeal. The importer, of course, always has a choice to take release of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y did not require a licence for import for the purpose of waiving the pre-deposit of penalty. However, for considering the release of the impugned goods without payment of duty, redemption fine and penalty, the merit of the case does require to be considered in greater detail so that the interim order must aid the main relief sought, bearing the interest of both the parties, as opined by the Hon'ble Madras High Court in Madras Electro Castings (supra). 9. Coming to the merits of this case, as regards valuation, the appellants have not produced the manufacturer's invoice or the required Chartered Engineer's certificate from the load port and as stated by the adjudicating Commissioner, they have waived the requirement of show-cause notice and personal hearing and have agreed to enhancement of the value. 10.As regards the violation of the import restriction, we find that, the DGFT Notification No. 31/2005 dated 19-10-2005 is categorical and it clearly states that secondhand photocopier machines will only be allowed against licence. The same reads as under :- "S.O. (E) In exercise of powers conferred by Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stem by which the optical image is created. As such, prima facie, we do not find any reason why the restriction imposed by the DGFT authorities under Notification No. 31/2005 dated 19-10-2005 should apply to photocopier machines of one kind and not apply to photocopier machines of a different kind. The analogue photocopiers and digital photocopiers are only two different kinds of photocopiers. They perform the same function namely conversion of the image of the original into a photocopy, using somewhat different technologies. Because of the conversion of the optical image to digital data at the intermediate stage, the digital photocopiers can be connected to ADP machines (for printing) and telephone lines (for faxing) though its principal use remains photocopying. The following Table captures the similarities and differences between the two kinds of photocopier machines :- Analogue Photocopier Machine Digital Photocopier Machine 1. The original document is scanned to create an optical image. 1. The original document is scanned to create an optical image. 2. The image is directly projected on to the photoreceptor. 2. The optical image is converted to digital data which is sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order that it is clear from the facts that the fine imposed earlier did not act as deterrent to stop further illegal imports. 4. It is thus clear that the petitioners who are in the business of marble and have become a habitual importer of goods inspite of the fact that they are very well aware of ie law that the imports have to be backed by a valid licence. 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. The Apex Court in the case of Her Snankar and Others v. Deputy Excise & Taxation Commissioner and Others [1975 (1) SCC 737] ruled that the writ jurisdiction of High Court under Article 226 of the Constitution of India is not intended to facilitate avoidance of legal obligation and to commit breach of law for the time being in force. The extraordinary jurisdiction of the High Court under Article 226, which is of a discretionary nature and is to be exercised only to advance the interest of the justice, cannot certainly be employed in aid of such persons; who ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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