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Commissioner of Customs (Import) , Custom House Versus M/s. Billiards Point, Hon'ble Customs, Excise and Service Tax Appellate Tribunal

2015 (5) TMI 800 - MADRAS HIGH COURT

Imports in violation of the Exim Policy - Deterrent penalty - Tribunal set aside penalty - Non speaking order - Held that:- Goods were contracted and shipped on 01.08.2004, i.e., when the import of second-hand machinery was not permitted. However, the bill of entry was filed on 09.09.2004. The importer taking advantage of the new Foreign Trade Policy, 2004-09, submitted that at the time of filing bill of entry, new policy had come into force permitting importation of second-hand machinery, the i .....

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penalty. - Tribunal has not passed a speaking order justifying the reduction of fine and setting aside the penalty. Hence, we have no other option except to remand the matter back to the Tribunal to reconsider the issue afresh - Decided in favour of Revenue. - Civil Miscellaneous Appeal No. 2057 of 2011 & M.P.No.1 of 2011 - Dated:- 30-4-2015 - R. Sudhakar And K. B. K. Vasuki,JJ. For the Appellant : Mr. Vikram Ramakrishnan For the Respondents : Mr. S. Jaikumar - R1 ORDER (Delivered by R. Sudhakar .....

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cating authority imposes deterrent penalty in order to stop the imports in violation of the Exim Policy (2002-2007)? (ii) Whether the Customs, Excise and Service Tax Appellate Tribunal was justified in reducing the redemption fine imposed under Section 125 of the Customs Act, 1962 without giving any reasons, when the adjudicating authority imposes fine in order to stop the imports in violation of the Exim Policy (2002-2007)?" 2. The brief facts of the case are as follows: The first responde .....

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confiscated under Section 111(d) and (m) of the Customs Act, 1962 read with Section 3(3) of the Foreign Trade (D&R) Act, 1992 and penalty was imposed under Section 112(a) of the Customs Act. Since the importer insisted for early adjudication by waiving the show-cause notice and personal hearing, the Adjudicating Authority, vide order-in-original, confiscated the goods with an option for redemption thereof on payment of a fine of ₹ 3.00 lakhs and imposed penalty of ₹ 1.50 lakhs. A .....

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submissions made remanded the matter back to the Commissioner (Appeals) for fresh disposal after examining the issue in terms of Section 111(d) of the Customs Act. On remand, the Commissioner (Appeals), re-adjudicated the order and upheld the confiscation, redemption fine and penalty. The importer pursued the matter before the Tribunal. The Tribunal passed an order reducing the redemption fine and setting aside the penalty holding as follows: "2. I have heard both sides. I find force in the .....

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gards contravention of Section 111(d), the issue stands settled as the relevant date for determination of violation of law is the date of shipment of the goods as held by the Tribunal in Soni Ispat Ltd. Vs. Commissioner of Customs (Import), Nhava Sheva [2007 (217) E.L.T. 274 (Tri.-Mumbai) which has been upheld by the Hon'ble Bombay High Court's decision reported in 2008 (229) E.L.T. A.182 (Bom.) [the Revenue's appeal against the Tribunal's order was rejected by the High Court]. I .....

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ore this Court. 4. Heard learned standing counsel appearing for the appellant and the learned counsel appearing for the Department and perused the materials placed before this Court. 5. Since the issue involved in this appeal centers around Sections 111(d), 111(m) and 112(a) of the Customs Act, it is apposite to extract the same for better clarity: "SECTION 111. Confiscation of improperly imported goods, etc. The following goods brought from a place outside India shall be liable to confisca .....

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, or in the case of goods under transhipment, with the declaration for transhipment referred to in the proviso to sub-section (1) of section 54;" 6. Section 112 of the Customs Act provides for imposition of penalty, which reads as follows: SECTION 112. Penalty for improper importation of goods, etc. Any person, - (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omissio .....

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ods or five thousand rupees, whichever is the greater; (ii) in the case of dutiable goods, other than prohibited goods, to a penalty not exceeding the duty sought to be evaded on such goods or five thousand rupees, whichever is the greater; (iii) in the case of goods in respect of which the value stated in the entry made under this Act or in the case of baggage, in the declaration made under section 77 (in either case hereafter in this section referred to as the declared value) is higher than th .....

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ought to be evaded on such goods or the difference between the declared value and the value thereof or five thousand rupees, whichever is the highest. 7. A plain reading of Section 112 of the Customs Act makes it clear that once confiscation is ordered, levy of penalty is automatic. 8. In the present case, the goods were contracted and shipped on 01.08.2004, i.e., when the import of second-hand machinery was not permitted. However, the bill of entry was filed on 09.09.2004. The importer taking a .....

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m ₹ 3.00 lakhs to ₹ 50,000/- and set aside the entire penalty. There is no reason why the Tribunal had reduced the fine and set aside the entire penalty. 10. This Court in the case of Commissioner of Customs (AIR), Chennai V. A.P.Pinherio reported in 2014 (306) E.L.T. 349 (Mad) 2014 306 ELT, while upholding the penalty, held as follows: "12. We have perused the show cause notice as well as the order of the Original Authority. It has been pointed out by the Department that the en .....

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