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TMI Blog2010 (9) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... vels (together ranging from about 30% to about 55%) imposed in these cases are not at all excessive as the respondents have found it still profitable to clear the goods on payment of the fines and penalties levied and have only subsequently filed appeals before the lower appellate authority - Appeals are allowed X X X X Extracts X X X X X X X X Extracts X X X X ..... vanan cites the decision of the Bangalore Bench of the Tribunal in the case of Shri Dilip Ghelani & Others v. Commissioner of Customs, Cochin - Final Order Nos. 643 to 648/2009, dated 2-2-2009 [2009 (248) E.L.T. 888 (Tri.-Bang.)] where the fine and penalty have been reduced by that Bench to the level of 10% and 5% of the value of photocopiers. 8. Reliance has also been placed by both the learned counsel on other decisions of the Chennai Bench of the Tribunal, where the fine and penalty have been reduced to the level of 15% and 5% of the value of the photocopiers. 9. The learned counsel Shri A.K. Jayaraj also states that the department has no ground to challenge the reduction in redemption fine and penalty as they have not challenged such reduction in respect of other cases. 10. The learned SDRs Shri C. Dhanasekaran and Shri C. Rengaraju emphasize the fact that these are cases of repeated violations against the law and the respondents are habitual offenders. It is argued on behalf of the Department that the cited decisions of the Hon'ble Madras High Court in the case of Sai Copiers (supra) has to be distinguished as the same does not authorize imposition of low fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f these goods are taking place at ports of Chennai, Tuticorin and Cochin at undervalued prices and without necessary import licences. It is quite obvious that the low levels of fines and penalties determined by the Tribunal earlier have not proved to be effective to stop such illegal imports which are being made repeatedly contrary to the law of the land. 12. I also find that the cited decision of the Bangalore Bench of the Tribunal in the case of Shri Dilip Ghelani (supra) states in paragraph 9 that "the restriction of fine and penalty to 10% and 5% has also been upheld by the Hon'ble High Court of Madras". This order does not give reference to which order of the Hon'ble Madras High Court has upheld restriction of fine and penalty to the level of 10% and 5%, based on which the Bangalore Bench has reduced the fine and penalty to such lower levels. In fact, the learned counsel Shri P. Saravanan who cited this decision of the Bangalore Bench was not able to either refer to or submit any decision of the Hon'ble Madras High Court in this regard. 13. The only decision of the Hon'ble Madras High Court which has been shown is that of the cited decision in the case of Sai Copie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Policy, mis-declaring the value of the goods as found in all these seven cases. As such, it appears that the lower appellate authority was not correct in placing reliance on the aforecited decision of the Hon'ble Madras High Court in arbitrarily reducing the fines and penalties to a lower level without taking note of the fact that he was dealing with cases of repeated offences and habitual offenders. 15. The higher courts have always taken a stricter view in respect of habitual offenders. For example, in the case of Sophisticated Marbles (supra), the Hon'ble Bombay High Court had held as follows :- "The petition is directed against the final order dated 18th December, 2003 incorporated at Exhibit - D to the petition. The challenge is at the instance of the petitioners wherein the fine and penalty is levied upon for importing marbles without the licence. 2. Whenever, petitioners import marble without licence, they pay fine and penalty, as may be levied under the provisions of the Customs Act. 3. In the past similar consignments were imported by the petitioners and in spite of levy of fine and penalty the petitioners continued to import marble without any licence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout licence and then seek to validate the import by obtaining subsequent licence or licences cannot be allowed to take advantage of their own wrong. The petitioners are one of them. 5. The petition, in the circumstances, is dismissed in limine, with no order as to costs." 16. In the case of Vaibhav Exports (supra), the Bombay High Court noted that the premium on import of imported diamonds in that case was around 3% only and that the importers in that case could have made profit of about 3% by the illegal imports without valid licences. Yet, the Hon'ble Bombay High Court authorized imposition of redemption fine equal to 20% of the value of the imported diamonds with observations that the importers should not find it profitable to make the imports without proper licence. The Hon'ble High Court took into account the fact that if the offender is required to pay only the amount which he has saved by not paying the premium for securing a genuine licence, he will never feel the pinch of being caught. He may commit same wrongs repeatedly and as and when he is caught, he may pay amount equivalent to the premium only. In the considered opinion of the Hon'ble High Court the red ..... X X X X Extracts X X X X X X X X Extracts X X X X
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