TMI Blog2010 (9) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... pondents have found it still profitable to clear the goods on payment of the fines and penalties levied and have only subsequently filed appeals before the lower appellate authority - Appeals are allowed - C/70-71 & 73-80/2010 - 1018-1026/2010 - Dated:- 24-9-2010 - Dr. Chittaranjan Satapathy, JJ. REPRESENTED BY : S/Shri C. Dhanasekaran and C. Rangaraju, SDRs, for the Department. S/Shri P. Saravanan and A.K. Jayaraja, Advocates, for the Assessee. [Order]. - Appeal Nos. C/70/2010 and C/71/2010 were heard on 16-7-2010. The remaining seven appeals were head on 17-9-2010. Since all these nine appeals involve a common issue, the same are dealt with by this common order. 2. Out of these nine appeals, Appeal Nos. C/78/2010 and C/80/2010 have been filed by the appellant-importers. The learned counsel Shri A.K. Jayaraj through his letter dated 21-9-2010, acting under instructions from the appellants, has sought permission to withdraw these two appeals. Granting the prayer, these two appeals are dismissed as withdrawn. 3. The remaining seven appeals have been filed by the Department challenging the orders of the lower appellate authority reducing the amounts of redem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the only justification that the lower appellate authority has given is that the Hon ble Madras High Court has upheld 15% of fine and 5% of penalty in the case of Commissioner of Customs, Tuticorin v. Sai Copiers - 2008 (226) E.L.T. 486 (Mad.). 7. The learned counsel Shri P. Saravanan cites the decision of the Bangalore Bench of the Tribunal in the case of Shri Dilip Ghelani Others v. Commissioner of Customs, Cochin - Final Order Nos. 643 to 648/2009, dated 2-2-2009 [2009 (248) E.L.T. 888 (Tri.-Bang.)] where the fine and penalty have been reduced by that Bench to the level of 10% and 5% of the value of photocopiers. 8. Reliance has also been placed by both the learned counsel on other decisions of the Chennai Bench of the Tribunal, where the fine and penalty have been reduced to the level of 15% and 5% of the value of the photocopiers. 9. The learned counsel Shri A.K. Jayaraj also states that the department has no ground to challenge the reduction in redemption fine and penalty as they have not challenged such reduction in respect of other cases. 10. The learned SDRs Shri C. Dhanasekaran and Shri C. Rengaraju emphasize the fact that these are cases of repeated violatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that several batches of cases have been decided earlier by the Tribunal Benches at Chennai and Bangalore as evidenced from the orders cited before me. It is quite obvious that despite imposition of fines and penalties on such imports, large scale imports of these goods are taking place at ports of Chennai, Tuticorin and Cochin at undervalued prices and without necessary import licences. It is quite obvious that the low levels of fines and penalties determined by the Tribunal earlier have not proved to be effective to stop such illegal imports which are being made repeatedly contrary to the law of the land. 12. I also find that the cited decision of the Bangalore Bench of the Tribunal in the case of Shri Dilip Ghelani (supra) states in paragraph 9 that the restriction of fine and penalty to 10% and 5% has also been upheld by the Hon ble High Court of Madras . This order does not give reference to which order of the Hon ble Madras High Court has upheld restriction of fine and penalty to the level of 10% and 5%, based on which the Bangalore Bench has reduced the fine and penalty to such lower levels. In fact, the learned counsel Shri P. Saravanan who cited this decision of the B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ble Madras High Court nowhere imposes a restriction on the discretion of the customs authorities nor it can be taken to authorize imposition of a low level of fine and penalty even in cases of repeated imports contravening the provisions of Import Policy, mis-declaring the value of the goods as found in all these seven cases. As such, it appears that the lower appellate authority was not correct in placing reliance on the aforecited decision of the Hon ble Madras High Court in arbitrarily reducing the fines and penalties to a lower level without taking note of the fact that he was dealing with cases of repeated offences and habitual offenders. 15. The higher courts have always taken a stricter view in respect of habitual offenders. For example, in the case of Sophisticated Marbles (supra), the Hon ble Bombay High Court had 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 pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same. In the facts of this case the consignments confiscated by the Customs authorities cannot be allowed to be released on the licence which were sought to be produced by the petitioners. The importers who are importing goods without licence and then seek to validate the import by obtaining subsequent licence or licences cannot be allowed to take advantage of their own wrong. The petitioners are one of them. 5. The petition, in the circumstances, is dismissed in limine, with no order as to costs. 16. In the case of Vaibhav Exports (supra), the Bombay High Court noted that the premium on import of imported diamonds in that case was around 3% only and that the importers in that case could have made profit of about 3% by the illegal imports without valid licences. Yet, the Hon ble Bombay High Court authorized imposition of redemption fine equal to 20% of the value of the imported diamonds with observations that the importers should not find it profitable to make the imports without proper licence. The Hon ble High Court took into account the fact that if the offender is required to pay only the amount which he has saved by not paying the premium for securing a genuine licenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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