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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 ..... 07 dated 07.8.2007 2 C/410/2007 M/s Ojaswi Marbles & Granites Pvt Limited Old Fatehpura, Udaipur (Rajasthan) 313 004 KDL/COMMR/33/2007 dated 06.8.2007 2. Brief facts of the appeals are that appellants imported rough marble blocks falling under CTH 2515 1210 of the first schedule to the Customs Tariff Act, 1975 and filed Bills of Entry for clearance of the same. It appeared to the Revenue that as per DGFT Notification No. 23/2005-2009 dated 31.8.05, read with Circular No. 24 (RE-05) 2004-2009 dated 30.8.2005, import of goods covered under CTH (HS) 2515 1210 are restricted and needed a valid import licence. Appellants waived issue of show cause notice and requirement of personal hearing and requested for a lenient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consignments. He also argued that redemption fine and penalties imposed depends upon the prevailing MOP in the case of Rough Marble Slabs and has no link with the profit earned by the appellants in their business activities as the same may vary from person to person at the same point of time. 5. Heard both sides and perused the case records. Appellants have not agitated confiscation on merits but have only tried to make out their case that quantum of redemption fine and penalties imposed by the adjudicating authority are on the higher side. It was argued on behalf of the appellants that as per CESTAT's order in the case of Sophisticated Marble & Granite Industries vs. Commissioner of Customs, Mumbai [2004(165)353 (Tri Mumbai)] redemption f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be no profit and propose to incur loss and keep doing so for quite a long while. There may perhaps be exceptions as in the cases of branded goods where a person may temporarily suffer loss in order to keep the brand name alive in the market. Marble blocks clearly do not fall in this category. It is clear from these facts that the quantum of fine determined earlier has been insufficient to eliminate the profitability of import. The fines determined in the past have thus failed to give effect to the provisions of law prohibiting import of the goods without a licence. It is possible that, as a result of the fines that were earlier fixed, the market price has increased, leading to a continuation of import. If that is what has happened, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not refer to any such expenses, or contain a ground based upon them. 20. As a result of these discussions, I am of the view that the fine and penalty determined by the Commissioner require to be upheld and agree with the Member (Technical). 5.2 The above majority decision passed by CESTAT was taken up to Bombay High Court by the Appellant where the following order was passed by Hon'ble High Court, reported at [2004(166) ELT 318 (Bom)], the relevant portion of the order is reproduced as under:- 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. In other words, penalty and fine did not get as de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 justice, cannot certainly be employed in aid of such persons; who have no respect for the law of land and who are deliberately indulging in committing breach thereof. This Court would not be justified in invoking writ jurisdiction in favour of such persons. Writ jurisdiction is available to further the cause of regime of law, not to abrogate the same. In the facts of this case the consignments confiscated by the Customs authorities cannot be allowed to be released on the licence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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