TMI Blog2022 (8) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... tion fine as per the percentage indicated in that order, which is higher than what has been upheld by the Hon ble High Court - there are no merits in the said submissions of the revenue. There are no merits in the appeal filed by Revenue challenging the order of Commissioner (Appeals) whereby he has reduced the redemption fine equivalent to 10% of undervaluation and which is in accordance with the order of Bangalore CESTAT - From the provisions of Section 128 and 128 A of the Customs Act, 1962, it is quite evident that there is sufficient power vested in the Commissioner (Appeal) to confirm, modify or annul any decision or order appealed against. Any order used in the section 128 and 128A, is wide enough to include the orders passed in respect of the imposition of penalty on the aggrieved person. Thus the order of reducing the penalty by Commissioner (Appeal) and aligning the same with the percentage of penalty as determined by the Bangalore Bench cannot be faulted with. The appeal filed by the Revenue is dismissed and the impugned order of Commissioner (Appeals) is upheld. - CUSTOMS APPEAL No.6 of 2011 - FINAL ORDER No. 40293 / 2022 - Dated:- 12-8-2022 - MS. SULEKHA BEEV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and obtaining refund, we direct status quo to be maintained until the disposal of the appeal. 4. After the stay order in 2011, it appears that matter has got listed for the first time now. We find that the question involved in this appeal is in a narrow compass and taking into account the year of appeal, we find that this appeal can be disposed of without hearing the respondent. 5. Learned Authorized Representative reiterated the grounds submitted in the appeal. He states that Commissioner (Appeals) has wrongly relied upon the order of CESTAT Bangalore Bench in the case of H.T. Company Vs CC Hyderabad 2007 (208) E.L.T. 507 (Tri.-Bang.) for fixing the fine and redemption fine as per the percentage indicated in that order. To support his case, he relies upon the decision of Hon ble Calcutta High Court in the case of CC (Preventive), West Bengal Vs India Sales International 2009 (241) E.L.T. 182 (Cal.). 6. We have considered the impugned order along with the submissions made in the appeal and during the course of arguments. Commissioner (Appeals) for disposing of the appeal, has held as follows : 6. I have carefully gone through the appeal, oral/written submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ixty thousand only) and penalty is reduced from Rs.2,00,000/- to Rs.80,000/- (Rupees Eighty Thousand only). The appellants are given option to redeem the confiscated goods on payment of fine of Rs.1,60,000/- under Section 125 of Customs Act, 1962. The appellants are also liable to pay the penalty of Rs.80,000/- under Section 112 (a) of Customs Act, 1962. The other arguments and case laws put forth by the appellants do not come to their help, as they have no relevance to this case. 7. The only reason stated by the revenue in the appeal filed by them before this tribunal is as follows: v) The purpose of penalties and fine is basically for punitive punishment according to gravity of offence. Although it can be said to be a subjective assessment, yet this subjective assessment should have a rationale and equability of justice in different matters. Therefore offence requires imposition of suitable fine and penalty. The Commissioner (A) has relied on the CESTAT decision in the case of M/s H T Company vs CC, Hyderabad relating to import of computer monitors, colour printers, etc. In the present case, the goods imported are used tyres, which are restricted goods with high profit m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such goods. The CESTAT by the impugned order has, however, directed the redemption of such prohibited goods and according to Mr. Bose that cannot be done even after taking into account which has even been made under section 125 of the Customs Act. 10. Section 125 of the Customs Act reads as follows: .. 11. He further tried to contend before us that in the said section it has been specifically used the word prohibited that prohibition has to be read in conjunction to the word negative list as has been framed under the said policy and therefore he submitted further that is the reason why in section 11 it has been stated with regard to prohibition on importation and exportation of goods and specifically stated that prohibited either absolutely or otherwise or subject to such condition has been specifically mentioned in the said Section 11 of the said Act. That is the reason Mr. Bose tried to convince us that the word which has been used by the legislators under Section 125 as `prohibited has to be read as prohibited absolutely. 12. In our considered opinion the Court cannot insert any word in the statute since it is within the domain of legislators. Whatev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n payment of the amount as directed by the authority the goods should be released within a period of six weeks from the date of communication of this order. 9. From the order of the Hon ble High Court as reproduced above it is quite evident that the issue under consideration of Hon ble High Court was in respect of the absolute confiscation of the goods, or allowing the same to be released on payment against the redemption fine. Hon ble High Court on the issue hasupheld the order of tribunal (appellate authority) permitting the release of the goods on payment of redemption fine. Further High Court has held that against the total assessed value of the Rs 64 lakhs, the redemption fine of Rs 8 lakhs imposed by the tribunal would suffice. In this case also the goods have been allowed to be released against the redemption fine which is about 8 % of the value of the confiscated goods. 10. It is not even the case that Commissioner (Appeals) has exonerated completely the respondent. The total offence which is as per the order of the Assistant Commissioner, is about 10% of under valuation. Against the declared value of US$ 30429 (Rs 14,19,513/-), Revenue has determined the loaded valu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
