9911796707
TMI Blog2009 (9) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... 000 4 C/482/09 Bhavani Enterprises 40/09 3,18,490 5,29,000 76,000 5 C/483/09 Tirupati Fin Trade 43/09 3,38,075 5,40,000 80,000 6 C/484/09 High Mount Business Systems 32/09 3,98,098 6,42,000 92,000 7 C/485/09 Maa Tara Enterprises 39/09 2,97,506 5,35,000 77,000 8 C/486/09 Maa Tara Enterprises 45/09 3,25,495 4,46,000 64,000 9 C/487/09 Office Devices 48/09 1,44,688 2,65,000 38,000 10 C/488/09 Office Devices 50/09 15,49,963 5,50,000 80,000 11 C/489/09 Mahavir Enterprises 46/09 1,59,718 2,95,000 43,000 12 C/490/09 Mahavir Enterprises 31/09 4,27,775 7,70,000 1,10,000 13 C/491/09 Ramdev Enterprises 29/09 3,41,461 6,00,000 86,000 14 C/492/09 Ramdev Enterprises 34/09 3,29,21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in all these cases. 3. Appellants aggrieved by such an order, preferred an appeal before the learned Commissioner (Appeals) and brought to the notice of the learned Commissioner (Appeals) that the imposition of redemption fine and penalty is not in accordance with the law as has been laid down by this Bench of the Tribunal and sought the reduction in the redemption fine. Learned Commissioner (Appeals) has come to the conclusion that imposition of fine and penalty is correct and upheld the order of the Adjudicating Authority and rejected the appeals. 4. Learned Counsel would assail the impugned order on merits also. It is his submission that in all these cases, there is no determination of margin of profit. He would submit that the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004 (170) E.L.T. A264 (S.C.). He would also submit that the Hon'ble Supreme Court has laid down the law that facts and circumstances of each case needs to be gone into detail and if there is a slight change in the facts and circumstances of the case, then the ratio laid down should not be considered as directly applicable. It is his submission that in all these cases facts of the cases are different as the goods imported are from different suppliers and different models and different country of origin. 5. We have considered the submissions made by both sides and perused the records. At the outset, we would like to say that the point made by the learned SDR as regards the consideration of the facts and circumstances of the each case separat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We find that this is not in accordance with the law as has been settled by the Hon'ble High Court of Kerala in the case of Office Devices. We find that the ratio of the decision of the Hon'ble High Court, in an appeal filed by the revenue against the order of this very Bench will be binding on us and we need to follow the same. We may reproduce the said ratio : 8. The dispute being only on the rate of redemption fine and penalty which inter alia depends on the totality of the facts and circumstances in each case, we fail to see how any question of law, much less any substantial question of law could arise. A quasi judicial authority in exercising a power of discretion has to do it in an objective manner and cannot do so in a mechanical way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2008 (226) E.L.T. 486 (Mad.)] had occasion to consider a similar case where the Tribunal had reduced the amount of penalty and redemption fine to 5% end 15% respectively of the value of the goods. It was held thus : "The statutory requirement is that the imposition of redemption fine shall not exceed the market price of the goods confiscated, less in the case of imported goods, the duty chargeable thereon. The language employed "shall not exceed" indicates that the authorities under Act are empowered to impose redemption fine less than the market price of goods. Likewise under Section 112(a), the maximum penalty that could be levied is only prescribed, and there is no statutory prescription that the penalty should not be reduced by appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority exercising the power is also bound by law of precedence and it is necessary to maintain consistency as otherwise it will be characterized as discriminatory. Therefore, this is not a case where the rate is applied uniformly in a mechanical way; but similar rate of redemption fine was adopted for parity of reasons. 6.1 Accordingly, in the facts and circumstances of this case, we modify the order of the learned Commissioner (Appeals). The redemption fine on the appellant shall not be in excess of 15% of the value of the imported goods, as has been certified by the Chartered Engineer. 7. In sum, the penalty imposed by the lower authorities which is 5% of the value of the imported goods as has been certified by the Chartered Engineer ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
