1993 (7) TMI 89 - HC - Customs

Summary

Issues Involved:
1. Legality of the redemption fine imposed by the Additional Collector of Customs.
2. Proper exercise of powers u/s 129D of the Customs Act, 1962 by the Collector of Customs.
3. Requirement of a hearing before exercising powers u/s 129D.
4. Correct date for determining the market price for quantifying redemption fine.

Summary:

1. Legality of the Redemption Fine:
The Additional Collector of Customs imposed a redemption fine of Rs. 8,00,000/- for each of the five bills of entry and a penalty of Rs. 80,000/- on each consignment without providing any calculation method. The court found that the Additional Collector failed to consider the market price on the date of importation, which is crucial for assessing the assessable value and quantifying the redemption fine. The court emphasized that the redemption fine should mop up the profit to the maximum extent possible, taking into account all relevant factors, which was not done in this case.

2. Exercise of Powers u/s 129D:
The Collector of Customs exercised his power u/s 129D(2) to file an application to the Collector (Appeals) for enhancing the redemption fine. The court noted that the Collector's action was based on the market price prevailing on the date of adjudication, which is incorrect. The correct date for determining the market price is the date of importation. Consequently, the order dated 18th June 1993 by the Collector for filing an application before the Collector (Appeals) was set aside.

3. Requirement of a Hearing:
The court held that before exercising powers u/s 129D, a notice of hearing must be given to the concerned party. This ensures that the party has an opportunity to present their case. The court found that a draft notice was prepared but not sent to the importer, which is a procedural lapse.

4. Correct Date for Market Price Determination:
The court clarified that the date of importation is the crucial date for assessing the assessable value and quantifying the redemption fine. The Additional Collector erred by considering the market price on the date of adjudication instead of the date of importation.

Order:
The court set aside the order dated 15th June 1993 by the Additional Collector and the subsequent action taken by the Collector u/s 129D(2). The Additional Collector was directed to adjudicate the matter afresh, taking the retail price of the goods on the date of importation (19th May 1993). The Additional Collector must provide reasonable opportunities for the importer to present relevant documents and must disclose any documents relied upon by the Customs Department. A reasoned order must be passed within three weeks, detailing the calculation process for the redemption fine. If any party is aggrieved by the new order, they may file a supplementary affidavit in the pending appeal.