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TMI Blog1992 (6) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and allowed the appellants to redeem two consignments seized in this case and confiscated on payment of a redemption fine of Rs. 5 lakhs. He also imposed personal penalty of Rs. 10,000/- on the appellant. 2. The brief facts of the case are that an intelligence has been gathered by the officers that some importers, taking advantage of the Flexibility Clause in REP licence had been clearing consumer goods in the guise of capital goods. A surveillance was kept in this regard. In the course of surveillance they first found out that a consignment consisting of five crates, equivalent to 25 sets of 3 Aqua-ultron water purifying and sterilising equipments had been located at K.P.D. It was also revealed that the same was imported per MV Thoma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... misdeclaration of the goods and the goods in question are capital goods. It was also stated that there is no misdeclaration of the goods and the same may be released. After granting a personal hearing, the adjudicating officer came to the conclusion that there was misdeclaration and the goods are prohibited and he confiscated the goods under Sections 111(d) and 111(m) of the Customs Act and allowed the appellants to redeem the same on payment of redemption fine of Rs. 5 lakhs and imposed a personal penalty of Rs. 10,000/- on them. 4. The learned Advocate Shri Sunil Chatterjee appearing for the appellants contended that the necessary documents were not furnished to the appellants and that the Additional Collector proceeded with a biased m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Additional Industrial Adviser to the Government of India, Ministry of Industry, Director General of Technical Development. It was informed by them in their letter 9-5-1989 that Aqua-ultron water purifying equipments imported by them is of the nature of consumer durables as this type of equipment is not basically designed for industrial use. They were also of the opinion that Aqua-ultron can be used with further processing for water purification by any domestic user. Import of such items by taking advantage of Flexibility Clause is not in line with Para 177 of the Import Policy. He also pointed out that the machine as such is a consumer goods whereas the installed factory for its production is obviously capital goods. He, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this water purifier is domestic and it is very convenient for making drinking water. Essentially the character of the same is purification of water obtained from pond, lake etc. 9. It is mentioned in the show cause notice that the matter was referred to the Additional Industrial Adviser, Government of India, Ministry of Industry, Director General of Technical Development, who vide his letter dated 9-5-1989 opined that the matter was examined in the light of specification and description of the item given along with the definition of the capital goods and consumer goods given in the Import Policy. On a perusal of the same, they opined that this Aqua-ultron water purifier imported by the appellants is a consumer durable as this type of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the definition of the capital goods is concerned, it cannot be said that Aqua-ultron purifier is a plant, machinery, equipment or accessory, which is to be installed in a factory by an investor for production of goods or for rendering services including those required for replacement or expansion as defined in the Policy. The Aqua-ultron purifier only purifies and it cannot be said that the same is required by an investor for production of goods. The purified water coming out of Aqua-Ultron purifier cannot be said to be goods. It cannot also be said that the same is required to be installed in a factory for production of goods or for rendering services including those required for replacement or expansion. But the plant, machinery, equip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also contended that the redemption fine is on the higher side on the facts and circumstances of the case. 13. We have considered this submission. It is true that when there are two consignments, the redemption fine should have been imposed on each of the consignments separately. The reason is that the appellants may like to redeem one consignment and he may not like to redeem the other consignment. If the redemption fine is imposed together with respect to both the consignments, the appellants are denied of this choice available to them. But, however, on that count it cannot be said that the order is a nullity. The Tribunal can fix up redemption fine on each of the consignments separately and to that extent the impugned order can be m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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