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2003 (12) TMI 137 - AT - CustomsDetermining the unit price of Rough Marble Blocks of Iranian origin - Confiscation of goods - Redemption fine and penalty - Quantum of of fine - difference of opinion is placed before the Hon'ble President for reference to Third Member. Whether the fine and penalty are required to be reduced to 20% and 5% respectively of the CIF value determined for the marble imported by the appellants and the appeal partly allowed, as proposed by Member (Judicial). HELD THAT - The Member (Judicial) , reduce the fine and penalty to 20% and 5% respectively, of the CIF value determined. Fine is therefore reduced to Rs. 3,50,000/- and the penalty to Rs. 17,500/-. The Member (Technical) was of the view that the quantum of fine and penalty imposed by the Adjudicating Commissioner does not require any interference. The appeal is rejected as devoid of any merit. Third Member Order - I agree that the Commissioner's order does not disclose the calculation on which he has determined the profit margin. I however do not find that this by itself is sufficient to hold as incorrect the fine determined by the Commissioner. It is not contended that the fine determined is contrary to the provisions of Section 125(2). In that situation, I do not find any requirement of law for the adjudicating authority to furnish a precise basis for the fine that he has determined. The exercise of discretion in the matter of determination of fine is not ex facie arbitrary, capricious or mala fide. It would have been easy enough for the appellant to demonstrate the incorrectness of the Commissioner's conclusion by furnishing figures. This has not been attempted. It is a settled law that fine and penalty are to be determined upon the facts of each case. The judgments of the Supreme Court cited by the Departmental Representative make this clear. The Court has also not found incorrect the action of the Tribunal in determining the fine based on facts available to it. The Tribunal's decision in Jai Bhagwati Impex Pvt. Ltd. 2001 (11) TMI 579 - CEGAT, MUMBAI , fixing a fine of 50% which has not been interfered with by the Supreme Court 2002 (5) TMI 848 - SC ORDER is itself sufficient to show that the margin of profit on marble has not been consistently found to be 20%. .I also do not find it possible to agree with the contention of the Counsel for the appellant that the difference in the conclusion of the two members of the Bench has only occurred because the Member (Technical) had gone by the incorrect figures of fine and penalty contained in the order of the Member (Judicial). While his order touches upon this aspect, a reading of it makes it clear that he has been guided solely by these figures. I am unable to say whether or not the demurrage incurred by the appellant justifies the lower fine. No evidence has been produced before me in support. There is no reference to this claim in the orders of the members of the Bench that heard the appeal. The memorandum of appeal does not refer to any such expenses, or contain a ground based upon them. As a result of these discussions, I am of the view that the fine and penalty determined by the Commissioner require to be upheld and agree with the Member (Technical). MAJORITY ORDER - The impugned order is upheld and the appeal rejected.
Issues Involved:
1. Determination of unit price of imported Rough Marble Blocks. 2. Confiscation of goods and imposition of fine and penalty. 3. Reduction of fine and penalty based on previous Tribunal decisions. Summary: 1. Determination of Unit Price: The Commissioner of Customs determined the unit price of Rough Marble Blocks of Iranian origin imported by the appellant at US $ 303 PMT, which was slightly higher than the declared CIF value of US $ 298.83 PMT. 2. Confiscation of Goods and Imposition of Fine and Penalty: The goods were confiscated with an option to redeem them on payment of a fine of Rs. 17,50,000/- and a penalty of Rs. 3,50,000/-. The appellant contested that the fine and penalty were excessive and sought a reduction based on earlier Tribunal decisions. 3. Reduction of Fine and Penalty: The Tribunal, referencing previous cases such as Marmo Classic v. CC, Nhava Sheva, and Akash Stone Industries v. CC, Mumbai/Nhava Sheva/Goa, noted that a fine of 20% of the CIF value and a penalty of 5% were deemed appropriate for similar imports. The Tribunal reduced the fine to Rs. 3,50,000/- and the penalty to Rs. 17,500/-. Separate Judgments: Member (Technical) Dissent: Member (Technical) disagreed with the reduction, arguing that such a reduction would leave a significant profit margin for the appellants and encourage contravention of import restrictions. He emphasized that the fine and penalty should be determined based on the facts of each case, including the margin of profit and the gravity of the offense. He upheld the fine and penalty imposed by the Commissioner as appropriate and in line with the guidelines in the Central Appraising Manual. Third Member Decision: The Third Member, agreeing with the Member (Technical), upheld the fine and penalty determined by the Commissioner, emphasizing that the fine should be tailored to the margin of profit in each case and that previous fines had failed to deter illegal imports. Majority Order: The impugned order was upheld, and the appeal was rejected.
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