9911796707
TMI Blog1993 (10) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... be seen that the Appeal Nos. 668/86 and 972/87 are against the same order; one filed by M/s. Everest Gems against the order of confiscation and imposition of redemption fine and the other filed by the Collector of Customs under the direction of the Board seeking for determination of the liability on M/s. Everest Gems to penalty under Sec. 112 of the Customs Act. 3. In these cases M/s. Everest Gems have imported almonds in shell and claimed clearance against the additional licences issued to Diamond exporters in compliance with the Supreme Court directive on the Writ Petitions filed by the Diamond Exporters. These additional licences were sought to be utilised for the import of almonds by M/s. Everest Gems. The facts which are required fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed redemption on payment of fine of Rs. 10 lakhs. 4. M/s. Everest Gems have come up in appeal against the order of confiscation and imposition of redemption fines. The Collector of Customs, Bombay had come up in appeal against the Order No. S/10-307/86-A, dated 18-6-1986, requesting the Tribunal to determine the penal liability under Sec. 112 of the Customs on M/s. Everest Gems. 5. The main contentions raised by the ld. advocate Shri Madon in favour of the appellants M/s. Everest Gems are as below : He refers to the interim order dated 18-2-1986 passed by the Supreme Court, wherein, the Apex Court have ordered that except in the cases, where irrevocable letters of credit have been opened before 31st January, 1986 and the goods co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articularly in this regard. Hence, they are only motivated by making a bonanza or profit. During the relevant period, the margin of profit is more than 200% in the case of almonds. He also referred to the judgment of the South Regional Bench in the case of M.M. Exports v. Collector of Customs, Madras - 1989 (39) E.L.T. 482 (Tri.) = 1988 (18) ECR 283, wherein the Bench have upheld the redemption fine to the extent of 220% going by the margin of profit on this item. He, therefore, pleaded that no modification in the quantum of redemption fine is called for. He also contended that the interim order was only an arrangement for bonding the goods pending final decision by the Apex Court. He also pointed out that the Supreme Court on 31-1-1986 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fide impression that in such cases imports can be effected. However, when the final order of the Supreme Court came, they made attempts to stop the consignment but they did not succeed. However, in the case of the Department appeal, the date of shipment itself is 18-2-1986 prior to the final order of the Apex Court. Hence, no mala fides can be attributed. 8. After hearing both the sides, we are unable to persuade ourselves to accept the proposition of the ld. advocate that the Supreme Court in their interim order dated 18-2-1986 laid down the proposition that where L/C have been opened before 31-1-1986, imports could be allowed without any redemption fine. As rightly pointed out by Shri Mondal, which is not rebutted by the ld. advocate, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said L/C was to expire on 15-3-1986 but extended on 27-2-1986. Hence, in the circumstances, we are of the view that no deliberate plan could be alleged that even after the interim order of the Supreme Court dated 18-2-1986; they had persisted in import; because of the fact that the goods have already been shipped on 8-2-1986, and the Supreme Court s final order came to be passed only on 15-5-1986. In these circumstances, we are unable to persuade ourselves to accept that this is a flagrant and deliberate attempt even after knowing the outcome of the Supreme Court judgment. Hence, we are not accepting the proposal for imposing penalty on M/s. Everest Gems. In the result the appeal filed by the Collector of Customs, Bombay (A. No. C/972/87 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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