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TMI Blog2010 (9) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... osed by the original authorities. The details of redemption fines and penalties imposed by the authorities below in these seven cases are summarized in the Table below :- Appeal No. Assessed Value Order-in-Original Order-in-Appeal R.F. Penalty R.F. Penalty (All in Rupees) C/70/2010 15,88,311 4,00,000 4,00,000 2,40,000 80,000 C/71/2010 17,94,152 5,38,000 4,49,000 2,70,000 90,000 C/73/2010 15,14,475 5,30,000 1,51,000 2,50,000 85,000 C/74/2010 16,67,025 4,00,000 1,00,000 2,30,000 75,000 C/75/2010 17,54,284 4,40,000 4,40,000 2,65,000 90,000 C/76/2010 18,08,947 5,43,000 4,52,000 2,70,000 95,000 C/77/2010 19,42,326 4,90,000 1,95,000 3,00,000 1,00,000 4. In all these cases, the respondents have imported second-hand digital photocopier machines variously described. The Customs authorities have adjudicated these cases enhancing the value of the consignments as the declared values were low. The authorities have also confiscated the consignments as the impugned goods were found to be imported in violation of the Import Policy and without valid import licences. In one case, there is also a charge of quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eated offences and habitual offenders. Shri C. Dhanasekaran also cites the following decision to support the contention of the Department that higher fines and penalties are warranted in cases of repeated offences :- (i) Jain Exports Pvt. Ltd. v. Union of India - 1993 (66) E.L.T. 537 (S.C.) : Quantum of redemption fine would depend on the facts and circumstances of each case and no hard and fast rule can be laid down in that behalf. Fixation of the quantum of redemption fine is in exercise of the discretionary jurisdiction of the authorities under the Customs Act and ordinarily this Court while exercising writ jurisdiction would be slow to interfere with such an order unless it is shown to be thoroughly arbitrary or whimsical resulting in gross miscarriage of justice. (ii) Sophisticated Marble & Granite Industries v Commissioner of Customs, Mumbai - 2004 (165) E.L.T. 353 (Tri. - Mumbai) upheld by the Hon'ble Bombay High Court vide 2004 (166) E.L.T. 318 (Bom.) and subsequently upheld by the Hon'ble Supreme Court vide 2004 (170) E.L.T. A264 (S.C.) : General level of fine and penalty not to be fixed by Tribunal for a class of goods to be applied in every case of import ir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the same is reproduced below : "There is no statutory prescription that the penalty should not be reduced by the appellate authority. Before the Tribunal, the importers relied on the earlier order of the Tribunal in the case of Sri Venkatesh Enterprises v. Commissioner of Customs, Chennai - 2005 (192) E.L.T. 818, wherein the quantum of redemption fine imposed in lieu of confiscation of secondhand photocopiers valued at Rs. 17.7 lakhs was restricted to Rs. 2.5 lakhs and the quantum of penalty was restricted to Rs. 85,000/-. The same was followed in the case of the respondents also by the Tribunal. The fixation of the quantum of redemption is an exercise of discretionary jurisdiction of the authorities under the Customs Act. The Court can interfere only in the circumstances in which it was demonstrated before it that the order of the Tribunal is thoroughly arbitrary, whimsical and resulting in miscarriage of justice. As already stated, the Tribunal has followed its own earlier decision wherein the Tribunal has consistently imposed the redemption fine at 15 percent and penalty under Section 112(a) at 5 percent of the value of the goods, which factum has not been disputed by the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to imposition of duty, redemption fine and penalty as determined by the adjudicating authority. The Tribunal has specifically observed in the 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 in spite of the fact that they are very well aware of the law that the imports have to be backed by a valid licence. In spite of this, if the petitioners are repeatedly indulging in importing marbles without licence, or subsequently obtain licence to cover up illegal imports then it would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch amounts. 17. In the appeals filed by the Department it is clearly mentioned that all these cases are repeated offences and that the respondents are repeatedly importing second-hand digital photocopiers without licences, undervaluing the same and in one case even the quantity was found to be mis-declared. In respect of Appeal No. C/70/2010 and C/71/2010, it has been indicated by the learned SDR that these are the 4th and 6th imports of the same kind by the same importers. As stated earlier, fines and penalties imposed on such importers previously have not deterred the respondents from continuing to make illegal undervalued imports. In fact, the fine and penalty at some what higher levels (together ranging from about 30% to about 55%) imposed in these cases are not at all excessive as the respondents 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. Reductions in fine and penalty granted by the said authority has only gone to further increase their profit margin. 18. Under the circumstances, I am of the considered view that the fines and penaltie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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