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2019 (5) TMI 1035

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..... unal remanding the matter for fresh consideration, vide order dated 14.12.2000. Therefore, it has to be seen as to whether there was any proposal at the first instance for levy of redemption fine. Admittedly, there was no such proposal for levy of redemption fine, as in the understanding of the original authority, the goods were not liable for confiscation, since the goods were not available and having been cleared and duty having been paid, no order of confiscation is possible - the Tribunal rightly deleted the redemption fine imposed on the respondent/importer. Imposition of penalty - HELD THAT:- Admittedly, maximum penalty equivalent to the amount of duty payable has been imposed - taking note of the peculiar facts and circumstances of t .....

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..... nal is correct in holding that imposition of find and penalty is not justified where the goods are liable for confiscation under Section 111(d) of Customs act, 1962? 3.The Revenue is aggrieved by the order passed by the Tribunal by which, the Tribunal deleted the levy of redemption fine and penalty imposed on the respondent by the Commissioner of Customs (Air), Chennai, vide order dated 17.04.2003. The Tribunal held that the dispute involved was taken to the Tribunal and was decided in de nova proceedings as per the direction of the Tribunal, and the dispute is a classification issue involving interpretation of the tariff entry and therefore, the importer cannot be penalised for holding a different view of the applicable classification to t .....

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..... nded the matter for de nova consideration in the case of Wipro Computers Ltd. vs. Commissioner of Customs, Chennai reported in 2001 (135) ELT 450 (Tri-Chennai). Therefore, it is submitted that the levy of redemption fine is without jurisdiction and therefore, rightly set aside by the Tribunal. 7.So far as the levy of penalty under Section 112(a) of the Act is concerned, it is submitted by the learned counsel for the respondent that the Tribunal rightly took note of the dispute which was pending, viz., classification dispute and therefore, it is not a case where penalty should have been imposed. The learned counsel placed reliance on the decision of the Hon ble Supreme Court in the case of Northern Plastic Ltd. vs. Collector of Customs & .....

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..... imately came before the Tribunal and the Tribunal by order dated 14.12.2000, allowed the assessee s appeal and remanded the matter for fresh consideration, obviously, the adjudicating authority cannot start from the inception as if it is a fresh proceedings. Therefore, in our considered view, on facts, the decision in the case of Comex Co. (supra) cannot be made applicable to the instant case. Accordingly, we hold that the Tribunal rightly deleted the redemption fine imposed on the respondent/importer. 10.Next, we move on to consider as to whether penalty was imposable. Admittedly, maximum penalty equivalent to the amount of duty payable has been imposed. 11.The argument of Mr.V.Sundareswaran is that there is no mens rea required to be esta .....

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..... n the case of Merck Spares v. Collector of Central Excise & Customs, New Delhi reported in 1983 ELT 1261; Shama Engine Valves Ltd. Bombay vs. Collector of Customs, Bombay reported in 1984 (18) ELT 533; and Madhusudan Gordhandas & Co. vs. Collector of Customs, Bombay reported in 1987 (29) ELT 904 wherein it was held that, in imposing penalty, requisite mens rea has to be established. The Hon ble Supreme Court also referred to the decision in the case of Hindustan Steel Ltd. vs. State of Orissa reported in 1978 (2) ELT (J 159) (SC) wherein, it was held that the discretion to impose penalty must be exercised judicially; penalty will ordinarily be imposed in cases where the party acts deliberately in defiance of law, or his guilty of co .....

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..... c case is that they have been importing the very same goods for a long period of time and clearing the same under the heading 8542 and all of a sudden, the Department took a stand that the import is classifiable under heading 8473.70. Thus, ultimately, when the issue was decided against the respondent/importer, they accepted the classification and paid duty and interest. Therefore, facts and circumstances definitely warranted a lenient approach, though according to the Revenue, Section 112(a) of the Act would automatically stand attracted. 16.Mr.V.Sundareswaran placed reliance on the decision in Nithi Tools (P) Ltd. (supra). This decision was pressed into service to state that Section 112(a) of the Act would stand attracted and penalty is i .....

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