TMI Blog2023 (12) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the goods are allowed to be re-exported, no redemption fine is to be imposed - it is found that redemption fine of Rs.5 lakhs imposed under Section 125 for redeeming the goods for the purpose of re-export only requires to be set aside. Penalty imposed under Section 112 (a) as well as Section 114AA of the Customs Act, 1962 - HELD THAT:- The facts bring out a case of forgery and manipulation of the documents submitted along with the Bills of Entry. It is the responsibility of the importer to furnish correct and genuine documents so as to assist in smooth clearance of the goods by the Customs Department - In the present case, the forgery and manipulation of the document is explicit and details are mentioned in the table in para 2.2. of the OIO. It is also noted that the Commissioner (Appeals) has observed that though the purchase was made on High Sea sale basis, there is room to doubt the bonafides of the importer - taking into consideration that the goods are being ordered to be re-exported, and also that the appellant has incurred huge demurrage charges, the penalty imposed under Section 112 (a) (i) can be reduced from Rs.5 lakhs to Rs.4,00,000 lakhs (Rupees Four lakhs onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y have been forged and manipulated. The original 5 certificates downloaded from the official website of Chile Government showed that these certificates were issued to importers from different countries such as USA, China, Brazil, France, Costa Rica and for different fruits such as Apples and Grapes. 4. As it appeared that the imported goods were undervalued, the values of same were enhanced during the assessment of bills of entry. 5. The Plant Protection Officer, Madurai after verifying the imported goods had given an order to the importer on 23.12.2002 to the effect that the consignments should be deported within 15 days for the reason that all the details in the Phyto Sanitary certificates are forged. The appellant also requested for re-export of the cargo vide letter dt. 06.01.2023 and waived the issuance of the show cause notice. 6. After due process of law, the original authority vide order dt. 13.1.2023 ordered for confiscation of imported goods, Kiwi Fruits totally valued at Rs.1,21,15,314/- under Section 111 (d) of Customs Act, 1962 and also ordered for re-export of the said goods on payment of redemption fine of Rs.20,00,000/- . A penalty of Rs.10 lakhs was impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has noted that the contention of appellant that they were not aware of the forgery of documents cannot be brushed aside completely, though there is room to doubt the bonafides of the importers. 7.3 The decision of the Tribunal in the case of Goyal Trading Co. Others Vs CC Nhava Sheva Final Order No.86357-86362/2023 dt.6.9.2023 was relied by the learned counsel to submit that when the goods are ordered to be re-exported the Tribunal had set aside not only the redemption fine but also the penalty imposed under Section 112 (a) of the Customs Act, 1962. The Ld. Counsel submitted that though there is an allegation of undervaluation, the appellant is not disputing the issue of enhancement of value of goods. It is prayed that the appeal may be allowed. 8. Ld. A.R Shri R. Rajaraman appeared and argued for the Department. 8.1 With regard to the contention put forward by the learned counsel that there is delay in passing the impugned order by Commissioner (Appeals), Ld. A.R submitted that though personal hearing was granted on 22.03.2023 the appellant did not appear for the hearing. Only on 18.04.2023 the appellant appeared and argued the matter. The order has been passed wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsonal hearing on 22.3.2023. The appellant or the representative failed to appear on such date. Another opportunity was given on 18.4.2023 on which date, the hearing was complete. After hearing, the impugned order is passed on 28.6.2023. It is contended by the appellant counsel that the appellant received the order only on 1.9.2023. Though there may be slight delay in despatch of the order, the same does not tantamount to make the order non-est or invalid as per law. This issue is held in favour of department and against the appellant. 11. The challenge in the present appeal is confined to redemption fine and the penalties imposed. The Commissioner (Appeals) has reduced the redemption fine from Rs.20 lakhs to Rs.5 lakhs and the penalty imposed under Section 112 (a) from Rs.10 lakhs to Rs.5 lakhs. The penalty imposed under Section 114AA is reduced from Rs.20 lakhs to Rs.10 lakhs. In para-9 of the impugned order the Commissioner (Appeals) has noted that there is no margin of profit as the goods are ordered to be re-exported. Further, it is also to be seen that the appellant has incurred huge loss due to demurrage charges etc. as the goods have been ordered to be re-exported. The g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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