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TMI Blog2001 (11) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... rder after considering in detail the margin of profit and the case law on the subject came to a conclusion as follows : 26. I have carefully gone through the case records and have considered the submissions made on behalf of the appellants. I find that there is no dispute regarding the two main issues involved in this case - (1) that the subject goods are not pre-mutilated rags, as declared, but old and used complete garments of various types, and (2) that the quantity of the subject goods was found to be in excess of the declared quantity, and hence mis-declared. 27. On the question of the impugned goods found to be old and used garments instead of completely pre-mutilated rags, the appellants have contended that they had placed orders for the declared quantity of old synthetic woollen rags completely pre-mutilated and fumigated , which had been properly reflected in the relevant Bills of Lading, Commercial Invoice, Packing List, Insurance Certificate, Certificate of Origin and Fumigation Certificate of the Sanitary Authority in USA apart from the invoice of the overseas supplier, packing list etc., and hence in accordance with the import documents the relevant bills of entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. 196 9523 Sweater 9523 x 33 = 3,14,259/- 3. 152 7386 Baby Garments 7386 x 35 = 2,58,510/- 4. 15 729 Trouser 729 x 37 = 26,973/- Total 425 20650 7,14,198/- CIF VALUE ASSESSABLE VALUE CIF @ US$ 0.45 CIF Rs. 4,28,849/- US$ 9292.50 Duty Rs. 1,91,066/- CIF Rs. 4,28,848.88 Total Rs. 6,19,915/- A/Value Rs. 4,33,137.37 Duty Rs. 1,91,065.64 MOP Rs. 94,347/- (22%) Clearance : Rs. 52,000/- Rent Detention : Rs. 1,61,552/- Total : Rs. 2,13,552/- MOP : Rs. 94,347/- Expenses : Rs. 2,13,552/- Rs. (-) 1,19,205/- Redemption Fine : Rs. 85,769.80 (20%) Appellant : M/s. Star Trading B/E No. Sl-118628, Dated 19-9-2000 Goods 450 Bales 21040 Kgs. Sl. No. Bales Weight (K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Rs. 93,329.20 (20%) 29. In this connection, the appellants have relied on a decision reported in [1997 (21) RLT 192 (CEGAT)] in the case of Commissioner of Customs, Calcutta v. Star Enterprises wherein it is held that while arriving at margin of profit for imposition of redemption fine, the calculation of all valid expenses including those of clearing, loading, transportation, unloading, godown, rent etc., incurred by the importers before such goods are put up for sale is to be allowed deduction. In the other case relied upon by the appellants reported in [2000 (122) E.L.T. 722 (Tribunal)] in the case of V.G. Mohanan v. Commissioner of Customs, Chennai, it is held that Higher redemption fine and penalty imposed in the case of present appellants although penalties imposed and redemption find levied much lower for an earlier identical import. Margin of profit same in both cases imposition of redemption find and penalty although discretionary but to be exercised judiciously. We have considered the submissions and have perused the two orders one passed in 11/99 and the present order passed in 2/2000. The order passed in 2/2000 does not bring out any circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a heavy fine as has been inflicted by the adjudicating authority in the impugned orders. 32. In view of the above, I am of the considered, view that the practice adopted by the Custom House/adjudicating authority in the matter of imposition of minimum quantum of 20% CIF value is at variance with the consistent view of the Hon ble CEGAT followed in the case of J. K. Textiles v. CC, Cochin reported in [1999 (114) E.L.T. 458 (Tribunal)] referred to at para 30 (above). I am, therefore, not inclined to accept the minimum quantum of 20% of CIF as worked out by the Custom House/adjudicating authority (para 28 refers). In the facts and circumstances of the case, it would be justifiable to maintain the quantum of redemption fine to a minimum of 25% of the CIF value as per the decision of the Hon ble Tribunal referred to above. 33. In so far as the quantum of personal penalty is concerned, I find that about 60% penalty has been imposed by the adjudicating authority in respect of all the 3 appellants. Further, on a perusal of the Custom House letter dated 16-10-2001, I get the impression that a higher penalty of 50% of CIF value is being imposed to negate the very purpose of computa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Single. They drew my attention to the paper book, wherein charge of similar consignments cleared during July, August, September and October of year 2000 from Kolkata on fine of 21% approx. and penalty 5% were shown. (b) Ld. DRs left the matter to the discretion of the Bench in view of practice of the Customs House as seen from the chart and the Tribunal decisions. They submitted that since a mis-declaration has been established, suitable redemption fine and penalty had to be imposed in the instant case. (c) Keeping in mind the case law and the fact that the contemporaneous imports have been allowed on 21% approx., I would consider and I am bound to follow the Tribunal s decision, to reduce the redemption fine to 20% of the CIF value and penalty to 5% of the CIF value as held by the Tribunal in the case of J.K. Textiles [1999 (114) E.L.T. 458 (Tribunal)]. I am also aware of and considering the fact that in J.K. Textiles case redemption fine was arrived at 25%. However, keeping in mind that there were cases of release of such goods by the Calcutta Customs House and the decision which has been correctly applied by the ld. Commissioner (Appeals) of [1983 (13) E.L.T. 1261 (CEGAT) a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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