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TMI Blog2013 (9) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... demption fines and penalties and the prayers in all these appeals are for remitting the matter back to the Commissioner for fresh consideration on the aspect of redemption fine and penalty. 1.2. Appeal No. C/761/2010 with respondent Bhawani Enterprises is by the Department against the order passed by Commissioner (Appeals) insofar as the same related to reduction of redemption fine/penalty imposed by the original authority. 1.3. All these appeals involve substantially similar facts and same legal points and, therefore, they are being dealt with by this common order. 2. None appears for the respondents. 3.1. Heard the learned DR extensively on behalf of the appellant-department. Learned DR referring to two charts (one relating to the 6 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of the Hon'ble High Court in the case of Jain Exports Pvt. Ltd., New Delhi and Anr Vs. UOI and others reported as [1987 (29) E.L.T. 753 (Del.)] particularly paragraph 71, she submits that quantum of fine in lieu of confiscation imposed should not be such as to give a bonanza of profits by an illegal transaction of import. She further relies on the decision of the Hon'ble Supreme Court in the case of Jain Exports Pvt. Ltd. Vs. UOI reported as [(1993 (66) ELT 537 (SC)] particularly paragraph 6 and submits that fixation of quantum of redemption fine should depend upon the totality of facts and circumstances of the case. 3.4. She also submits that the Board, vide Circular No. 36/2000 dated 8.5.2000 and Circular No. 9/2001 dated 22.02.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f redemption fine and penalty ordered by the Commissioner (Appeals). 4.2. In none of the cases, any statements of the representatives of the respondents relied upon. Therefore, the circumstances under which the respondents imported the second hand goods without the requisite licences are not forthcoming. 4.3. In all these cases, the second hand goods have been examined by the Chartered Engineer who has given his opinion about the brand of the goods, age of the goods and estimated values of the consignment. For example, in Appeal No. 692/2010, the Chartered Engineer's certificate indicates that the goods imported are used copiers of Canon brand, though they were of different models and capacities; that the said goods were not reconditioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me equally plain that the resort to Section 125 of the Act to impose fine in lieu of confiscation cannot be so exercised as to give a bonanza or profits for an illegal transaction of import. Some justification offered by importer may be taken into account for not proceeding for personal penalty under Section 135 of the Act against the importer. But there would appear to be hardly any justification for letting an importer make monetary gain from any illegal transaction of imports and/or exports. Because if apparent justification pleaded for import, which ultimately is found to be prohibited it can still result in monetary gain to the importer, there may be serious danger and risk to the success of the whole import and export policy with inev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the non-edible variety of coconut oil was not a canalized item and could, therefore, be imported under Open General Licence (OGL). As stated earlier the importers contention that Refined Industrial Coconut Oil was not a canalized item under Item 5 of Appendix 9 of the relevant import policy has already been negatived by this Court. Therefore, there can be no dispute that the import of the two consignments in question was illegal and liable to confiscation under Section 111(d) of the Customs Act. Ordinarily, therefore, the Collector of Customs was entitled to impose a redemption fine in lieu of confiscation, apart from penalty under section 112 of the Customs Act. The quantum of the redemption fine would depend on the facts and circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner is not adequate is not forthcoming. As already mentioned these are not cases involving any other violation except violation relating to import without requisite licences. Under these circumstances, I do not find any valid reason to accept the prayer of the department for remanding the matter to the Commissioner for deciding the quantum of redemption fines/penalties afresh. 6.2. Similarly it cannot be said that reduction of redemption fine and penalty by the Commissioner (Appeals) was arbitrary. This is because, the original authority has not relied upon any market enquiry to determine the profit margin and imposing redemption fine and penalty. As already mentioned, written show-cause notice was waived in this case. If there we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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