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TMI Blog1995 (8) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... on each of the appellants herein under the Customs Act, 1962 (`the Act for short) in respect of the import of 5000 kgs. of cloves by the appellants on the ground that the import was in contravention of the law. Similar view has been taken in the appeal relating to appellant Universal Enterprises in respect of similar import resulting in similar fine and penalty. 2. Shri Suganchand Jain, Ld. counsel for the appellants submitted that the appellants are not contesting the appeals on merits and pleaded for reduction in the quantum of fine and urged that the Tribunal in a batch of appeals in similar circumstances have considered similar issue and granted reduction in the quantum of fine to 15% of the value of the goods. The Ld. counsel furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the quantum of fine to 15% (fifteen per cent) of the value of the goods and order accordingly. The penalty in each case stands confirmed. The appeals have been disposed of accordingly. Sd/- (S. Kalyanam) Vice President 6. [Contra per : V.P. Gulati, Member (T)]. - I have carefully gone through the order of learned Brother Shri S. Kalyanam and I have not been able to persuade myself to agree with the same. 7. I observe that the learned Brother has followed the ratio of the decision in Order No. C/Misc./305/90 in Appeal Nos. C/430 to 437/89-MAS and similar view taken in a number of appeals as referred to by the learned counsel. The decision in Order No. C/Misc./305/90 is a majority decision and I had given a dissenting judgment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nless it could be shown that there had been a uniform practice in this regard in the CEGAT. The redemption fine, therefore, to be fixed will have to be considered independently in the facts and circumstances of this case. 8. It is observed that the learned Advocate for the appellants, while not contesting the appeals on merits, pleaded for reduction in the quantum of fine and orders in this regard were reserved by the Bench. It is seen from the narration of the facts in the order of the learned lower authority the ban for the import of cloves under OGL had been imposed on 29-11-1988 by issue of Public Notice No. 82 ITC(PN)/88-91, dated 29-11-1988. Under this Public Notice an exception had been made permitting importation of cloves under O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng might be accepted. Relying on the report of the Director General of Customs, Colombo that the goods had been actually shipped on board on 1-12-1988 the learned lower authority held that the consignment of cloves had been shipped only after the Public Notice dated 29-11-1988 came into force thereby rendering the import unauthorised and in contravention of the provisions of Section 11 of the Customs Act, 1962 read with Section 3(1) of the Imports Exports (Control) Act, 1947 and proceeded to penalise the appellant. It is seen that the cloves were provisionally released on 7-3-1989 on furnishing a bank guarantee by the appellants. It is seen that the learned lower authority has fixed a redemption fine of Rs. 88,000. The appellant has not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the goods were cleared on 7-3-1989. In view of the above, I am of the view that the redemption fine of Rs. 88,000 fixed by the learned lower authority, which is about 25% of the value, cannot be considered as excessive in the facts and circumstances of the case and I confirm the same and dismiss both the appeals Sd/- (V.P. Gulati) Member (T) POINT OF DIFFERENCE Whether in the facts and circumstances of the case, the redemption fine should be fixed at 15% of the value following the ratio of the Order of the Tribunal in Order No. C/Misc./305/90, dated 26-4-1990 in Customs Appeal Nos. 430 to 437/89 as held by Member (Judicial) or the redemption fine of Rs. 88,000 which is about 25% of the value should be maintained following the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J) has determined at 15% following the precedents particularly in the cases covered by order No. C/Misc/305/90, in the case of Sh. Sanghvi Bhurmal Chunnilalji 3 Others v. Collector, Madras wherein also there was a difference of opinion between the two Members with reference to quantum of redemption fine and the matter has been referred to Third Member and the Third Member, as per her order dated 1-1-1991 following the series of cases agreed with the views expressed by Member (J) in reducing the fine to 15% of the value of the goods. 14. The learned SDR on the other hand submitted that 25% of the value cannot be considered as excessive in the facts and circumstances of the case, as it was rightly observed by Member (T). 15. I have care ..... X X X X Extracts X X X X X X X X Extracts X X X X
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