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TMI Blog2019 (11) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... ules (Requirement of Compulsory Registration) Order, 2012, being "prohibited goods" under Section 2(33) of the Customs Act, 1962. The goods cannot b e allowed for home consumption without clearance from the competent authorities and there is no specific request from the importer for re-export of the impugned goods, I refrain from granting the option of redemption under Section 125 at this stage. ii. The re-fixation of value would be premature at this stage as the procedures prescribed valuation rules has not been complied with in the proceedings. For the purpose of considering the penal liabilities the transaction value declared in the Bills Entry is accepted. iii. I impose penalty of Rs. 55,00,000/- (Rupees fifty five lakhs only) on M/s. Pypye Techserve Private Ltd., Ahmedabad, Gujarat under Section 112(a) of the Customs Act, 1962 and I refrain from imposing penalty on the importer under Section 114AA of the Customs Act, 1962. iv. I impose penalty of Rs. 5,00,000/- (Rupees five lakhs only) on Shri Pratik Babaria, Managing Director, M/s. Pypye Techserve Private Ltd., Ahmedabad, Gujarat under Section 112(a) of the Customs Act, 1962 and I refrain from imposing penalty on him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n law as the same has been passed without properly appreciating the facts and the law and the precedent decisions by the Tribunal and the High Court. He further submitted that the impugned order has been passed without considering the relevant documentary evidences and the statutory provisions/rules. He further submitted that used MFDs in working condition did not fall in the ambit of waste as defined under Rule 3(38) of Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 and it could not have been included in the scope of 'Other Wastes'. He further submitted that all the documents which were required to be produced for import of the impugned goods were produced by the appellant but they were not properly appreciated by the Commissioner. He also submitted that the decision of the Apex Court relied upon by the respondent was altogether in a different context of facts and is not applicable to the facts and circumstancs of the present case. He also submitted that the Commissioner failed to appreciate that the appellant had already produced certificate issued by ELBI Consultancy (P) Ltd, which is an agency approved by DGFT for inspection and certification of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of goods in the present case is clearly a breach of such condition which will result in confiscation. He further submitted that such goods ought to have been considered as prohibited items as their import is not free of restriction. He also justified the imposition of penalty on its Managing Director. 6. After considering the submissions of both the parties and perusal of the material on record, we find that this issue is no more res integra and has been settled by this Tribunal in the case of Parag Domestic Appliances and Atul Automation Pvt. Ltd. wherein the Tribunal after considering the submissions of both the parties have observed in para 7 to 19.1, as under:- 7. We have heard both sides extensively and perused the appeal records. We note that the dispute in the present case relates to the eligibility of the importer to clear the goods for home consumption as a trader. They are not contesting the confiscability of the imported items and penal consequences thereof. It is admitted that the import is in violation of Import Policy applicable during the material time. The goods are used items and require an import licence for importation. The point which is strongly pleaded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edule VIII (entry 4(j)) stipulates 5 documents to be produced by the importer. The first one is regarding country of origin which in the present case, the importer produced the certificate from Canadian authorities. We find force in the objection raised by the Revenue regarding the non-applicability of such certificate to the present consignments. The consignments have originated from China / Korea / Japan as admitted by the importer and were initially being supplied by Canadian authorities cannot be correlated and now with the Bills of Lading are from various ports of USA etc. As such, the country of origin certificate to be issued by competent authority of that country is not satisfactorily produced in the present consignments. To that extent, there is a violation of the said rules. 11. The next condition is regarding certificate issued by inspection agency approved by DGFT regarding functionaility and residual life of the goods. We note that the original authority held against the appellants regarding violations of these provisions. The present consignments which are imported for which Bills of Entry were filed in October to November 2016 are governed by the 2016 Rules which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. The violation of Hazardous Waste Rules is with reference to country of origin certificate. Other conditions mentioned therein have substantially been fulfilled as discussed above. 16. With the above background, we examine now the proceedings on penal action against the importer. Admittedly, the goods are restricted and there are violations of Policy. The question is whether such violations will result in refusal to release the goods on redemption in terms of Section 125 of Customs Act, 1962. We note that the importer himself have imported a large number of consignments through Calcutta Port and also other ports including Cochin, and these were in fact adjudicated and allowed for clearance on payment of appropriate redemption fines and penalties. We note that even through the Cochin Port such consignments have been allowed for clearances including for the present appellants. No substantial change in the law subsequently has been discussed in the impugned order to change the earlier decision. We also note that the Hon'ble Madras High Court in City Office Equipments [2016(336) ELT 19 (Mad.)] examined the scope of such infringement and their implication for the application of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted in concealment. Observing that these two items were not expressly prohibited for importation, Court ordered for redemption of the same. In the present case, we are dealing with a restricted item which was imported by the appellants for further usage of the said used machines. Admittedly, these items are not expressly prohibited for importation. The Tribunal observed in Yakub Ibrahim Yusuf Vs. CC, Mumbai [2011(263) ELT 685 (Tri. Mumbai)] that redemption of goods on fine has to be allowed in terms of Section 125 if the goods were not expressly prohibited for import. The Tribunal was dealing with import of gold in violation of the provisions of Policy. 17. In view of the above discussions and analysis, we find that while confiscation of the imported items cannot be faulted with, we note that the appellants are entitled for release of the goods on payment of appropriate redemption fine. The original authority allowed the redemption of goods, though only for re-export, on payment of fine of Rs. 1 crore in respect of M/s. Atul Automation P. Ltd., and on payment of Rs. 30 lakhs in case of M/s. Parag Domestic Appliances Ltd. 18. The total assessable values for the consignments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utomation Pvt. Ltd., the Tribunal imposed redemption fine of 10% of the value of the goods. By considering the precedent decisions and by following the same, we also hold that the appellant is liable to pay redemption fine of Rs. 50 lakhs (Rupees fifty lakhs only) for the consignments imported by them. As far as imposition of penalties on the appellant as well as the Managing Director is concerned, this Tribunal in the ea rlier case have imposed the penalty of 5% of the assessable value under Section 112(a) of the Customs Act, 1962. Keeping in view the consistent practice followed as held in various cases as discussed by the Tribunal in the case of Parag Domestic Appliances and Atul Automation pvt. Ltd.. Therefore applying the ratio of those decisions, we find that the ends of justice shall be met if the penalty imposed under Section 112(a) is reduced to Rs. 25 lakhs (Rupees twenty five lakhs only) for the appellant M/s. Pypye Techserve Private Ltd.. As far as penalty on the Managing Director Shri Pratik Babaria is concerned, we uphold the penalty of Rs. 5 lakhs (Rupees five lakhs only) imposed under Section 112(a) of the Customs Act, 1962. 8. The appeal is disposed of in above t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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