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TMI Blog2013 (9) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondents and no show-cause notice has been issued to any of the respondents on the ground that they waived written show-cause notices. Therefore, the basis on which the department is alleging that the redemption fine and penalty imposed by the Commissioner is not adequate is not forthcoming. As already mentioned these are not cases involving any other violation except violation relating to import without requisite licences. – Decided against revenue. - C/691-692/2010, C/694-697/2010 & C/761/2010 - 178-184/2012 - Dated:- 2-3-2012 - Mr. M. Veeraiyan, J. For the Appellant: Mrs. Sabrina Cano, Assistant Commissioner (AR) JUDGEMENT 1.1. 6 appeals as per Annexure-A to this order have been filed by the Department and are d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had such requisite licences. The imported goods were subject to examination by approved Chartered Engineers who gave opinion on the nature of goods, residuary life of the machines and on the value of the goods. In all these cases, the respondents have accepted the enhanced values for the purpose of payment of customs duty. 3.2. The Commissioner in 6 cases has held that the imported old and second hand goods were liable for confiscation and accordingly confiscated them. Learned DR, referring to the orders of Commissioner, submits that the redemption fine and penalty imposed is only in the range of 13 to 15% on the re-determined value. In one case, the original authority passed similar order on similar facts and imposed redemption fine and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In respect of appeal arising out of Commissioner (Appeals) orders, she prays that the order of the Commissioner (Appeals) should be set aside and order of the original authority should be restored. 4.1. I have carefully considered the submissions from both sides and perused the records. In all these cases, the department is challenging the discretion exercised by the Commissioner/Commissioner (Appeals) in imposing/reducing the redemption fines and penalties. The Commissioner in all the cases adjudicated by him has ordered for confiscation of the goods as the respondents have imported second hand goods without licence and also held that the said importers were liable to penalties. The dispute only relates to quantum of redemption fines an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in excess of what was declared by the respondents. In all other cases also the factual position is substantially the same. 5.1. Para 71 of the decision of the Hon ble High Court of Delhi in the case of Jain Exports Pvt. Ltd. relied upon by the appellant department reads as under: 71. It should also be noted that once it is found as I have that the goods were illegally imported, the same became liable to confiscation. Of course the Collector has given option to pay fine in lieu of confiscation. In that context it seems to me that the authorities have to examine various circumstances, details of facts, which cannot obviously be examined herein these proceedings. The redemption fine is in the discretion of the Collector. That is why vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant for not personally penalizing him, but he cannot be permitting to make any profits out of illegal deal. The amount of redemption fine would and must necessarily be determined by these considerations. I do not however wish to pursue it any further because all these details of actual income, sale price and other expenses can only be shown by the petitioner to the authorities concerned, who has to pass the final order. The above decision clearly envisages discretion of the adjudicating authority in imposing the redemption fine. 5.2. The relevant portion of the decision of the Hon ble Supreme Court in the case of Jain Exports Pvt. Ltd., relied upon by the appellant department is reproduced below:- 6. Since the question regarding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that by itself will not entitle them to a waiver of the full redemption fine unless the totality of the facts of the case so warrant. We must, therefore, at the outset clarify that we do not read the decision in D. Navinchandra Co. and B. Vijay Kumar (supra) as laying down any such absolute rule. 5.3. The Hon ble Supreme Court has clearly held that the quantum of redemption fine would depend on the facts and circumstances of each case and no hard and fast rule can be laid down in that behalf. 6.1. Now it would be appropriate to revert back to the facts of the present cases. It is not the case of the department that the Commissioner has fixed the quantum of redemption fine and penalty arbitrarily. In all these cases, no statement has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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