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TMI Blog2003 (3) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... tation has been done without license and the Commissioner has taken into consideration the previous offence committed by the appellant also. A penalty of Rs. 10 lakhs has also been imposed under Section 112(a) of the Customs Act. 2. We have heard Shri A.K. Jeyaraj, Adv. for the appellant and Shri G.S. Menon, SDR for the respondent. 3. Ld. Counsel relied on the prevailing price during the period as reflected from the Economic Times, Mumbai. He filed work sheet in terms of the price for respective days. It is his contention that the average price should have been worked out to adopt the price or in terms of the work sheet. He contended that if the price at which the department has adopted is worked out then there is a loss of 11.54% and there is no margin of profit. It is his contention that if the price is adopted at average price worked out by him in terms of the work sheet presented to the Tribunal the margin of profit would be only 2.43% and redemption fine would be Rs. 3.23 lakhs and penalty would be only Rs. 35,000/-. In support of his plea he has relied on the Tribunal s ruling rendered in the case Shankar Trading Co. v. CC as reported in 1999 (106) E.L.T. 456 and that of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m was US $ 445 (CIF) per MT. Since they were possessing valid import licence, the case was adjudicated and for the purpose of imposing Redemption fine and release of the goods the department had taken market price of Rs. 35,000/- per MT i.e. Rs. 35/- per Kg. Thereafter the department had prepared a working sheet and ascertained the margin of profit as 11.7%. It was submitted that the CIF value of the goods is Rs. 1,30,33,049/- and on the basis of the above working sheet of the department taking the value of Rs. 35/- per Kg, the Margin of profit was worked out @ 11.7%. It was also submitted by the learned Counsel for the appellants that the settled formula for arriving at the margin of profit is : Market price Landed cost x 100 CIF price The above formula is the accepted formula by all Tribunals. This Tribunal also in the case of M/s. Shankar Trading Company v. Commissioner of Customs, reported in 1996 (106) E.L.T. 456 had applied the above formula. The appellants also accept the above formula and the working out sheet prepared by the department. But their objection is only that the market price taken by the department at Rs. 35,000/- per MT. i.e. Rs. 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above figure, the price taken was from Rs. 30,000/- to Rs. 34,000/- per MT. They have also enclosed working sheets separately for different values and have submitted that the market price quoted in Economic Times has been accepted by the Tribunal as in the case of M/s. Shankar Trading Company reported in 1999 (106) E.L.T. 456 and also in the case of M/s. Murali Enterprises vide order No. 15/2000 dated 23-11-2001. Hence the average of the price reported in Economic Times has to be accepted. It was further submitted that if the market price of Rs. 33,000/- per MT is taken i.e. Rs. 33/- per Kg, the margin of profit is 2.43% and the redemption fine could be Rs. 3,23,464/- and if the market price of Rs. 34,000/- per MT i.e. Rs. 34/- per Kg is taken the margin of profit could be 7.08% and the redemption fine could be Rs. 9,42,439/-. The learned Counsel also relied upon the following decisions in support of their plea for reduction in fine : (i) M/s. Southern Chemicals Dyes (sic) vide Final Order No. 15/2002 dated 23-11-2001 [2003 (151) E.L.T. 352 (Tri.)] wherein the Tribunal has reduced the redemption fine taking into consideration the price quoted in the Economic Times and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he various judgments cited by the appellants and as conceded by the learned SDR for the Revenue and the formula for taking average price is available before me. (d) The redemption fine has to be fixed in line with the market value i.e. average value and the redemption fine shall not exceed the market value. (e) Price of the goods as reported in the Economic Times has been taken into consideration while deciding the case earlier by the Tribunal as in the case of M/s. Murali Enterprises v. CC, Chennai vide Order No. 15/2002 dated 23-11-2002. Therefore, all the materials required for arriving at the market price of the goods are available on record. 11. Learned Member in his order vide para 5 has clearly recorded that the department has also accepted the position that average price has to be taken for the purpose of fixing the market price and by doing so, in the case of M/s. Shankar Trading Murali Enterprises similar matter was finally decided by the Tribunal. However, in the present case, even when all the relevant materials required for the purpose of deciding the matter on merits are available on record, learned Member (J) proposed to remand the matter for recons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e import policy on the part of the importer and hence the goods have been rightly confiscated with option to redeem the same on payment of fine. Therefore, in the overall facts and circumstances of the case including the fact of importation of garlic on earlier occasion without licence, I am of the considered opinion that ends of justice would be served if the redemption fine is reduced from Rs. 20,00,000/- to Rs. 8,50,000/- (Rupees Eight Lakhs and fifty thousand) and I order accordingly. So far as the quantum of penalty is concerned, taking into consideration the quantum of the goods involved and in the overall facts and circumstances of the case, I am inclined to think that ends of justice would be served if the penalty is reduced from Rs. 10,00,000/- to Rs. 2,50,000/- (Rupees Two lakhs fifty thousand) and I order accordingly. Except for the above modifications, the appeal is otherwise dismissed. Sd/- (Jeet Ram Kait) Member (T) POINTS OF DIFFERENCE In view of the difference of opinion, the following questions arise for determination by the third Member :- Whether the appeal is required to be remanded back to the Commissioner in the facts circumstances o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecovered by the regular Bench. There is no grievance in this appeal that the goods were not liable to confiscation OR that a redemption fine was not liable to be imposed in lieu thereof, nor is it the appellants case that no penalty was liable to be imposed on them under Section 112(a) of the Act. The only grievance of the appellants is regarding the quantum of fine and penalty. This grievance is related to the market value of the goods. Ld. Commissioner has adopted the market value of Rs. 35,000/- per M.T for the purpose of quantifying redemption fine and penalty. The appellants have submitted that the Commissioner has taken the maximum of the contemporary market values reported by the Economic Times around the date of presentation of the Bill of Entry. According to them, the average of the values should have been taken, in which event the quanta of redemption fine and penalty would have stood substantially reduced. 15. It is seen from the orders recorded by ld. Brothers that the SDR who represented the Revenue before the regular Bench conceded the fairness of the average value being adopted for the purpose of quantification of redemption fine and penalty. The order recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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