TMI Blog2022 (9) TMI 1167X X X X Extracts X X X X X X X X Extracts X X X X ..... on an earlier occasion, the very same goods were imported by the appellant-importer from the very same supplier through Nhava Sheva Port. The documents relating to the earlier imports have been furnished by the appellant and it is stated that they have been produced before the original authority also. Taking note of these facts into consideration and also relying upon the decision of the Hon ble jurisdictional High Court, the redemption fine imposed in the present case requires to be set aside. The appellant has argued to set aside penalty of Rs.7 lakhs imposed by the adjudicating authority. It has to be stated that the appellant is not contesting the reclassification or levy of differential duty - the penalty imposed under Section 112 (a) of the Customs Act, 1962 is proper. However, the penalty of Rs.7 lakhs appears to be on a higher side. The penalty calls for reduction and it is reduced to Rs.2,00,000/- (Rupees Two lakhs only) and ordered accordingly. Appeal allowed in part. - CUSTOMS APPEAL No.40432 of 2020 - FINAL ORDER No. 40327/2022 - Dated:- 23-9-2022 - Ms. Sulekha Beevi C.S., Member (Judicial) Shri B. Satish Sundar, Advocate For the Appellant Shri R. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were packed in total 25 boxes with 80 packets per box and each pack containing 500 needles. Therefore, the total no. of needles at Sl.No.6 worked out to be Rs.50 lakhs. Further, the item mentioned at Sl.No.7 i.e. Embroidery Machine Needles of TOYO brand were packed in total 20 boxes with 40 packs per box and each pack containing 1000 needles. The total number of needles at S.No.7 worked out to be Rs.8 lakhs. Thus, the total nos. of needles mentioned at Sl.No.6 7 together was worked out to Rs.58 lakhs. 4. The items mentioned at Sl.No.2,6,7,8,10 11 were reclassified as detailed below : S.No.as per BE Description of the goods Declared CTH Assessed CTH 2. Plastic Balloon Pump 84142090 39269069 6. Embroidery Machine Needle 84485190 84523090 7. Embroidery Machine Needle 84485190 84523090 8. Glitter Paper 48239090 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Commissioner (Appeals) therefore took the view that the order passed by the original authority has merged with the order passed by him while remanding the mater to the original authority and therefore rejected the Revenue s appeal as being infructuous. 7. Being aggrieved by such order, the Department filed an appeal before the Tribunal. The matter was heard by the Tribunal and vide Final Order No.41372/2019 dated 19.11.2019, the Tribunal held that the issue requires to go back to the competent authority for re-adjudication after following the principles of natural justice. The order passed by the commissioner (Appeals) was set aside and the matter was remanded to the competent authority to re-adjudicate the case within 12 weeks of receipt of the order of the Tribunal. 8. Pursuant to such remand, the matter was taken up for readjudication by the Commissioner and the impugned order was passed, the operative part of the order reads as follows : i. I reject the declared value of the goods at S.No. (6,7 and 8) imported vide Bill of Entry No.6974966 dated 27.06.2018, under rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and I re-det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainable. When the goods are re-exported there is no relevancy to the market value of the goods, margin of profit, customs duty payable which are the parameters for fixation of redemption fine in terms of Section 125 of the Customs Act, 1962. The goods under confiscation are not cleared for home consumption but allowed only to be re-exported. Appellant has already re-exported the goods by paying the redemption fine. As the goods have been redeemed only for the purpose of re-export there is no relevancy of market value of the goods or margin of profit as required under Section 125 of the Customs Act, 1962. To support his argument, he relied upon the following judgements : (i) Judgment of the Hon ble Supreme Court in the case of Siemens Ltd. Vs. Collector of Customs reported in 1999 (113) ELT 776 (SC) (ii) Judgment of the Hon ble High Court, Madras in the case of Sankar Pandi Vs. UOI reported in 2002 (141) ELT 635 (Mad.) affirmed by the Hon ble Supreme Court reported in 2018 (360) ELT A214 (SC) (iii) Judgement of the Hon ble Tribunal in the case of M/s.Perfect Trading Company Vs. Commissioner of Customs (AIR) reported in Final Order No.40065/2022 dated 10.2.2022 (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4485190 to CTH 84523090. Based on the notification, it was held that the goods attract ADD. The appellant had not only misdeclared and misclassified the goods at Sl.Nos.6 7 but there was mis-classification in respect of Sl.No.2 which were declared as Plastic balloon pump . On examination, these goods were found to be hand pump and not electric pump. The goods were reclassified from 84142090 to 39269069 and accordingly the Basic Customs Duty leviable was 10% as against the earlier rate of 7.5%. The goods declared at Sl.No.8 i.e. 1331 kgs of Glitter paper were actually found to be made of plastic and these were ordered to be classified under CTH 39269099. The value of the goods was also found to be low and the same was enhanced from USD 1 per kg to USD 0.4 per kg. 13. It is submitted by Ld. A.R that in para-16 of the impugned order, it is noted that the goods declared at Sl.No.10 i.e. EH 120 Electronic Card was actually found to be PCB Card for Embroidery Machine and these were rightly classifiable under CTH 84529099 i.e. parts of embroidery machine. The classification adopted by the appellant for these goods was also incorrect. Thus there was misdeclaration and misclassificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty regarding payment of redemption value for the articles which are brought from Singapore. Subsequently, the petitioner contended that he is no longer interested to take return for the purpose of use or consumption within India, but he wanted to re-export the same. Therefore, he prayed that he need not pay any redemption value. No order has been passed in the revision petition where such prayer has been made. Hence, the present Writ Petition has been filed. 3 . It appears that the question relating to re-export is covered by the decision of the Supreme Court rendered in the case of Siemens Limited v. Collector of Customs reported in S.C. 1999 (113) E.L.T. 776. Keeping in view the abovesaid decision there cannot be any doubt that the petitioner is entitled to re-export the articles in question and for the abovesaid purpose, it is not necessary for him to pay redemption fine as imposed by the authorities. 4 . The learned Counsel for the petitioner further submitted that since the petitioner is not going to import the articles and use or sell the articles within India, the imposition of penalty of Rs. 33,000/- should be quashed. 5 . The learned Counsel appearing for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon ble jurisdictional High Court, I am of the view that the redemption fine imposed in the present case requires to be set aside which I hereby do. 20. The appellant has argued to set aside penalty of Rs.7 lakhs imposed by the adjudicating authority. It has to be stated that the appellant is not contesting the reclassification or levy of differential duty. Apart from the goods at Sl.No.6 7 all other goods have been redeemed by the appellant by paying redemption fine and appropriate duty. It is seen that these goods which fall in Sl.No.2, 8, 10 11 have also been misdeclared / misclassified. For this reason, I do not think that the penalty imposed under Section 112 (a) of the Customs Act, 1962 is improper. However, the penalty of Rs.7 lakhs appears to be on a higher side. I hold that the penalty calls for reduction and it is reduced to Rs.2,00,000/- (Rupees Two lakhs only) and ordered accordingly. 21. From the foregoing, the impugned order is modified to the extent of setting aside the redemption fine imposed for redeeming the goods for the purpose of re-export mentioned at Sl.Nos.6 7 of the Bill of Entry. Penalty of Rs.7,00,000/- imposed under Section 112 (a) of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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