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TMI Blog2013 (10) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... e repeatedly including in importing marbles without licence, or subsequently obtain licence to cover up illegal imports then it would be a duty of writ Court to arrest such tendency prevailing amongst the importers of the goods. The Apex Court in the case of Her Shankar and Others v. Deputy Excise & Taxation Commissioner and Others [1975 (1) TMI 89 - SUPREME COURT] ruled that the writ jurisdiction of High Court under Article 226 of the Constitution of India is not intended to facilitate avoidance of legal obligation and to commit breach of law for the time being in force. The extraordinary jurisdiction of the High Court under Article 226, which is of a discretionary nature and is to be exercised only to advance the interest of the justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Decided against assessee. - Appeal No. : C/409 & 410 of 2007 - - - Dated:- 11-10-2013 - Mr. H.K. Thakur, J. For the Appellant: Shri P.V. Sheth, Advocate For the Respondent : Shri S.K .Mall, AR JUDGEMENT Per : Mr. H.K. Thakur; Following appeals have been filed by the appellants on the same issue hence these are being taken up for disposal under a common order: Sr. No. Appeal No Appellant Name and Address OIO No and Date 1 C/409/2007 M/s Marvellous Marble Granite, Hiran Magri Udaipur (Rajasthan) KDL/COMMR/35/2007 dated 07.8.2007 2 C/410/2007 M/s Ojaswi Marbles Granites Pvt Limited Old Fatehpura, Uda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value as penalty was sufficient in the present imports. It was thus his case to reduce the quantum of redemption fine and penalty. 4. Shri S K Mall (AR) appearing on behalf of the Revenue argued that margin of profit and quantum of redemption fine and penalty applicable to the imports of Iranian Marble in 2003 in the case of Sophisticated Marble Granite Industries vs. Commissioner of Customs (supra) cannot be made applicable to the present imports from Vietnam made in 2007. It was also his case that appellants have not brought any evidence before the adjudicating authority as to how much demurrage etc. they will be incurring in the present consignments. He also argued that redemption fine and penalties imposed depends upon the prevaili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the quantum of redemption fine and penalties proposed by Member(Judicial) and passed the following order :- 18. One factor is obviously of great significance. It is to be noted that there have continuing and a large number of imports of marble by various persons without import licence. That is clear from the large number of orders that has been referred to in these proceedings. If the fine of 20% was sufficient to wipe out the margin of profit, how would such imports contrary to law continue unabated? No group of businessmen would continue to import goods to sell them in the domestic market with the full knowledge that there would be no profit and propose to incur loss and keep doing so for quite a long while. There may perhaps be ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the appellant that the difference in the conclusion of the two members of the Bench has only occurred because the Member (Technical) had gone by the incorrect figures of fine and penalty contained in the order of the Member (Judicial). While his order touches upon this aspect, a reading of it makes it clear that he has been guided solely by these figures. I am unable to say whether or not the demurrage incurred by the appellant justifies the lower fine. No evidence has been produced before me in support. There is no reference to this claim in the orders of the members of the Bench that heard the appeal. The memorandum of appeal does not refer to any such expenses, or contain a ground based upon them. 20. As a result of these discussi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porter of goods in spite of the fact that they are very well aware of the law that the imports have to be backed by a valid licence. Inspite of this, if the petitioners are repeatedly including in importing marbles without licence, or subsequently obtain licence to cover up illegal imports then it would be a duty of writ Court to arrest such tendency prevailing amongst the importers of the goods. The Apex Court in the case of Her Shankar and Others v. Deputy Excise Taxation Commissioner and Others [1975 (1) SCC 737] ruled that the writ jurisdiction of High Court under Article 226 of the Constitution of India is not intended to facilitate avoidance of legal obligation and to commit breach of law for the time being in force. The extraordina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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