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TMI Blog2014 (9) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no statutory prescription that the penalty should not be reduced by the appellate authority. - Decided against the revenue. - Civil Miscellaneous Appeal Nos. 656 and 1104 to 1121of 2014 - - - Dated:- 22-8-2014 - R. Sudhakar And G. M. Akbar Ali,JJ. For the Petitioner : Mr. K. Ravi Anantha Padmanabhan Senior Standing Counsel for Customs For the Respondent : None JUDGMENT (Delivered by R. Sudhakar,J.) The Revenue has filed the above Civil Miscellaneous Appeals challenging the common order of the Tribunal, wherein the Tribunal declined to interfere with the order of adjudication passed by the respective Commissioner (Appeals), who reduced the quantum of redemption fine and penalty in the case of import of old and used digital multifunction printing machines/photocopiers, which came to be confiscated on the ground of restricted goods requiring licence. 2. The respondent in all these cases imported old and used digital multifunction printing machines and filed bills of entry in respect of each machinery. The Revenue took the plea that as per the trade policy 2004-2009, import of photocopier machine was restricted and required import licence. The goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench was right in law by setting aside the order of confiscation in all these cases when the analog photocopier in the consignments were liable for confiscation? 4. Whether the order of the Tribunal confirming the reduction of fine and penalty, on the strength of the order of CESTAT, Bangalore Bench, is legally sustainable as the respondent-importer is a regular offender and when the order of CESTAT, Bangalore Bench has been appealed by the Department before the Hon'ble High Court at Kerala? 5. Whether the order of the Tribunal is sustainable in confirming to reduce the quantum of fine and penalty which is contrary to Board's circular No.78/2003 dated 1.9.2003 which says that purpose of levying fine and penalty is to ensure that the importer is not allowed to make any profit in the imports made by violating any restrictions under FTP of other Rules and Regulations? 5. We find that the above substantial questions of law are totally inappropriate. 6. Heard learned senior standing counsel appearing for the appellant and perused the materials placed before this Court. 7. The primary ground raised by the Revenue, which is relevant for the present case, reads as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es relied upon the Chartered Engineer's Certificate, Harmonised System of Nomencleature (HSN) notes to sub-heading 84.43 and the judgment of the Supreme Court in the case of Xerox India Limited V. Commissioner of Customs, Mumbai to come to a conclusion that the old used digital multifunctional print and copier machines are not restricted items and therefore confiscation is not correct. 11. Placing reliance on the above-said decisions, the Tribunal, in paragraph No.6, held as follows: In the light of the above decision, which is applicable on all fours to the facts of the present batch of cases, as the adjudicating authority has found that the machines in question are capable of additional functions, such as printing, etc., when connected to a computer, although confiscation and penalty is to be sustained in the absence of any appeal by the importers against confiscation and penalty, no justification exists for enhancement in the quantum of fine in lieu of confiscation and penalty. Further, in all the cases relied upon by the importers, fine to the extent of 15% and penalty to the extent of 5% of the value of the goods has been confirmed. The case law relied upon by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 125 of the Customs Act, 1962 and in the absence of any market enquiry conducted by the Department, the Tribunal came to the conclusion that the value has been fixed by the Chartered Engineer's at the behest of the Department and therefore, no fault could be attributed to the assessee. The Tribunal in paragraph No.6 of the order came to hold that the relevant factors have to be kept in view while fixing the fine and penalty, which has been done by the lower Authority. Hence, the Tribunal did not find any reason to set aside the findings of the Commissioner (Appeals), as he had followed the earlier decision of this Court reported in 2008 (226) E.L.T.486 (Mad) (Commr. of Customs, Tuticorin V. Sai Copiers), wherein this Court held as follows: 9. From the reading of the above provisions, it is clear that 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 the goods confiscated. Thus, a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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