TMI Blog2021 (10) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... discussion in the order of the COC (I) as to how the quantum of fine has been arrived at and what would be the margin of profit in order to arrive at the quantum of fine. The Tribunal has at least given the basis as to why they have reduced redemption fine to 35% - Appeal is dismissed. - CUSTOMS APPEAL NO. 5 OF 2007 - - - Dated:- 23-9-2021 - K.R. SHRIRAM, and M. S. KARNIK, JJ. Mr. Pradeep S. Jetly, Senior Advocate a/w Mr. Jitendra B. Mishra, for Appellant. Mr. Anil Balani, for Respondent. ORAL JUDGMENT (K.R.SHRIRAM, J.) : 1. This appeal is filed under Section 130 of the Custom Act, 1962 against an order dated 24th January 2006 passed by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal ). The Tribunal, by the impugned order, had partly allowed the appeal filed by the respondent by reducing the redemption fine imposed on respondent for unauthorised import of restricted item, i.e., rough marble blocks without an import licence in violation of the provisions of EXIM policy. 2. Respondent had imported three consignments of the restricted goods, i.e., rough marble blocks covered by three bills of entry being B/E no. 999963, no. 999964, both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided that where the proceedings are deemed to be concluded under the proviso to sub-section(2) of section 28 or under clause (i) of sub-section (6) of that section in respect of the goods which are not prohibited or restricted, [no such fine shall be imposed], Provided further that, without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. (2) Where any fine in lieu of confiscation of goods is imposed under sub-section (1), the owner of such goods or the person referred to in sub-section (1) shall, in addition, be liable to any duty and charges payable in respect of such goods.] (3) Where the fine imposed under sub-section (1) is not paid within a period of one hundred and twenty days from the date of option given thereunder, such option shall become void, unless an appeal against such order is pending. 5. Against this order passed by COC (I), respondent preferred an appeal before the Tribunal and the order dated 24th January 2006 of the Tribunal is impugned in this appeal. The Tribunal observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmission of the learned SDR that no leniency ought to be shown to the appellants herein on the ground that they are repeated offenders, we find that there is no such conclusion reached by the adjudicating authority in any of the three adjudication orders challenged before us in these appeals. We find that there is no discussion in the impugned orders as to how the quantum of fine has been arrived at and as to what would be the margin of profit in order to arrive at the quantum of fine. Noting that in the case of import of similar goods and of rough marble slabs also, the Tribunal has been consistently holding that a fine which works out to about 20 to 30% of the assessable value would be sufficient, in a serious of decisions, we reduce the fines in each case to 35% of the value determined which is the transaction value because the value has been accepted, keeping in mind the fact that the appellants herein had earlier also imported rough marble blocks, as seen from the earlier orders of the Tribunal and, therefore, they have been importing these goods over a period of time even without a licence. 7. On 8th February 2007, this appeal was admitted and following questions of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision for levying the redemption fine in lieu of confiscation, the said provision is to be strictly followed and, therefore, said redemption fine should be imposed by the competent authority which amount would not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. 13. It is true that in the present case, the respondents had imported Marble Blocks without any licence and, therefore, their goods which were sought to be imported, were confiscated. On payment of duty as determined, the question that arose was as to what would be the redemption fine payable, if any. The said issue was considered by the Commissioner and thereafter he had imposed redemption fine in lieu of confiscation and also penalty in terms of the provisions of Sections 125 and 112 of the Act respectively. However, the aforesaid orders passed by the Commissioner came to be interfered with by the Tribunal whereby the Tribunal reduced the quantum of redemption fine as also the penalty. 14. We have considered the submissions of the counsel appearing for the appellant that the aforesaid reduction in case of redemption fine as also the penalty is ill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law arose from the orders of the Tribunal. It has held as follows : Having heard the counsel on both sides, we are of the opinion that there are no questions of law which can be said to arise out of the order of the Tribunal. It is not disputed by the Revenue that the facts in the case of Respondents i.e. Marmo Classic and the facts in the case of Stonemann Marble Industries and Jai Bhagwati Impex Pvt. Ltd. are similar. On perusal of the orders passed by the Tribunal in the case of Stonemann Marble Industries and Jai Bhagwati Impex Pvt. Ltd. it is seen (sic). that the Tribunal has reduced the redemption fine and penalty by taking into account the margin of profits and the demurrage incurred by the importers of the said consignments. It is pertinent to note that the Tribunal in similar circumstances, have taken a uniform view to restrict the redemption fine to 20% of the CIF value and penalty to 5% of the CIF value. Under these circumstances, it is evident that the decision of the Tribunal is essentially based on finding of fact. The Tribunal has reduced the redemption fine and penalty by taking into account its earlier decision as well as the margin profit and the amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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