2010 (5) TMI 477 - AT - Customs

Release of goods pending appeal Tribunal to invoke its powers under Rule 41 of the CESTAT (Procedure) Rules, 1982 - Tribunal has allowed provisional redemption of confiscated goods on payment of duty and redemption fine without insisting on payment of penalty - reason given in this interim order that only duty and fine are related to the goods and not the penalty - Commissioners (Appeal) and the Tribunal have only discretionary power to waive the requirement of pre-deposit of duty, interest and penalty in case of undue hardship for the purpose of hearing an appeal under Section 129E but not for release of goods prior to deciding an appeal - importer, has a choice to take release of the goods on payment of duty, redemption fine, and penalty adjudged, subject to the outcome of an appeal before the appellate authorities. It is thus clear that the petitioners who are in the business of marble and have become a habitual importer of goods inspite of the fact that they are very well aware of ie law that the imports have to be backed by a valid licence. Inspite of this, if the petitioners are repeatedly including in importing marbles without licence, or subsequently obtain licence to cover up illegal imports then it would be a duty of writ Court to arrest such tendency prevailing amongst the importers of the goods.

Issues Involved:
1. Enhancement of value of imported goods.
2. Imposition of redemption fine.
3. Imposition of penalty.
4. Request for waiver of predeposit.
5. Request for early hearing.
6. Request for interim release of goods.

Issue-wise Detailed Analysis:

1. Enhancement of Value of Imported Goods:
The adjudicating Commissioner rejected the declared value of US $59,870 (C&F) and redetermined the customs value to be US $69,395 (C&F). The appellants had neither produced the manufacturer's invoice nor a Chartered Engineer's certificate from the load port, as required by Board's Circular No. 4/2008-Cus. dated 12-2-2008. Instead, a local Chartered Engineer appraised the value, which the appellants accepted. This acceptance formed the basis for the enhancement of the value.

2. Imposition of Redemption Fine:
The adjudicating Commissioner imposed a redemption fine of Rs. 10,25,000/- after confiscating the imported goods. The appellants were habitual violators, with this being their fourth offense, justifying the heavy penalty. The fine was in line with the enhanced customs value and the assessable value of Rs. 34,15,893/-.

3. Imposition of Penalty:
A penalty of Rs. 13,70,000/- was imposed on the appellants due to their repeated violations of import regulations. The Commissioner noted that the appellants did not apply for an import license, arguing the value of the goods was insignificant. Despite this, the appellants' habitual non-compliance warranted a stringent penalty.

4. Request for Waiver of Predeposit:
The Tribunal, exercising its discretion under Section 129E of the Customs Act, 1962, waived the requirement of predeposit of the penalty for the purpose of hearing the appeal. This decision considered the appellants' financial hardship and the fact that the goods were still in customs custody.

5. Request for Early Hearing:
The application for early hearing was pending. The Tribunal noted that the amount involved was below the Rs. One crore limit set for out-of-turn hearings, thus not warranting immediate attention.

6. Request for Interim Release of Goods:
The appellants sought interim release of the goods without full payment of duty, fine, and penalty, invoking Rule 41 of the CESTAT (Procedure) Rules, 1982. However, Rule 41 does not provide for interim release of goods. The Tribunal found no precedent for such an order and emphasized that duty, fine, and penalty must be paid before the release of goods. The Tribunal cited the Hon'ble Madras High Court's decision in Madras Electro Castings and the Hon'ble Bombay High Court's decision in Sophisticated Marbles, which supported the stance that habitual violators should not be granted interim relief without ensuring payment of dues. The appellants were advised to clear the goods on payment of duty, fine, and penalty, subject to the outcome of the appeal.

Conclusion:
The Tribunal upheld the enhancement of value, imposition of redemption fine, and penalty, while denying the request for interim release of goods without payment. The waiver of predeposit was granted for the purpose of hearing the appeal, but the early hearing application was not prioritized due to the amount involved. The appellants were given the option to clear the goods upon payment of the assessed dues, pending the final decision on their appeal.

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