TMI Blog2018 (3) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... Ispat Pvt Ltd v. Commissioner of Central Excise & Customs, Nasik (supra). Accordingly, we set aside the redemption fine of ₹ 55 lakhs. Similarly, a redemption fine of ₹ 2.5 lakhs will also not sustain since the goods were not available for confiscation and the said redemption fine is also set aside. As regards the demand of duty of ₹ 9,83,400/- from the appellant under section 28(1) of the Customs Act, 1962 and interest @ 20% under section 28AB of the Customs Act, 1962 and imposition of penalty of ₹ 9,83,400/- under section 114A upon the appellant, we find that the appellant is not importer of the goods. Penalty u/s 114(i) of the CA 1962 - Held that: - the appellant have transferred only two licences wherein the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere not available for confiscation a redemption fine of ₹ 2.5 lakhs was imposed under Section 125, import duty of ₹ 9,83,400/- was confirmed against appellant along with transferee of licence/importer M/s Madhu Overseas under section 28(1) of The Customs Act, 1962 and demanded interest @ 20% per annum under Section 28AB of the Customs Act, 1962. Penalty of ₹ 9,83,400/- under Section 114A of the Customs Act 1962 was imposed on M/s Tej Overseas, Ahmedabad and M/s Madhu Overseas, Mumbai. 2. Being aggrieved by the order-in-original, the appellant M/s Tej Overseas filed the present appeal. 3. Shri P S Namboodiri, Learned Counsel appearing on behalf of the appellant submits that there is an apparent error in the order and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded had admitted of having made profit of 110%. Therefore, there is no overvaluation of the goods. He placed reliance on the following judgments: i. Nangalia Impex v. Commissioner of Customs, Mumbai 2017 9352) ELT 265 (Tri. Mumbai); ii. JG Exports v. Commissioner of Customs, New Delhi 2000 (121) ELT 754 (Tribunal-LB) iii. Commissioner of Customs (EP) v. Jupiter Exports 2007 (213) ELT 641 (Bom.) iv. Thar Dry Port v. Commissioner of Customs, Jodhpur 2017 (358) ELT 1214 (Tri.-Del.) v. Hind Industries v. Commissioner of Customs, New Deli 2014 (314) ELT 342 (Tri.Del.) vi. Commissioner of Customs (Import), Mumbai v. Finesse Creations Inc. 2009 (248) ELT 122 (Bom.) vii. Shiv Kripa Ispat Pvt Ltd v. Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 26/02/98, recorded Unde3r sec. 108 of Customs Act 1962 that the prevailing market price of 1000 tablets was between ₹ 26 to ₹ 40 whereas negotiated price was ₹ 150. He has also admitted that he used to give 20% commission to the commission agents. This amount is also unusually high as even margin of profit in this Pharma Sector is not that high in the normal course of business. It can be possible only if the merchant exporters succeeded in laying their hand on some sort of bonanza. And this bonanzas is in the form exorbitant prices shown by the merchant exporter M/s Tej overseas, for the exported goods in order to obtain duty free Advance Licences which could be sold in the open market on high premium. The fact that S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sactions in foreign currency. .. If the goods are easily available in the market, then it would be difficult to arrive at the conclusion that a foreign buyer a prudent businessman would pay ten times more than the prevailing market price of readymade clothes, particularly, in the days where information is easily available through internet or various other sources. In any case, when margin of profit appears, on the face of it, unreasonable, it is for the exporter to establish that it was true export value stated in the shipping bill. Further, the merchant exporters themselves have miserably failed to produce any evidence in support of the unusually high international price for the export goods. 6. From the above, we observe that the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licences. However, the present case pertains to the period 1995 during which there was no provision to recover duty from the transferor of the licence. Accordingly, duty demand and consequent interest and penalty confirmed against the appellant are set aside. 7. As regard penalty of ₹ 2.5 lakhs imposed upon the appellant under section 114(i) of the Customs Act, 1962 which is in relation to the overvaluation of export goods, we find that the appellant have transferred only two licences wherein the duty involvement is ₹ 2,83,400/-. As regards the 15 licences, the appellant have surrendered those licences without use thereof. Taking into consideration over all facts and circumstances of the case and the duty involved in the two ..... X X X X Extracts X X X X X X X X Extracts X X X X
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