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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 ..... 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 were subjected to verification by the customs authorities and according to the Revenue, the importers have admitted that they did not have any import licence and they requested for adjudication. In most of the cases, without issuing show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g on the decision of the CESTAT, Bangalore Bench in such behalf without analyzing it in proper perspective and when the said decision of the CESTAT, Bangalore Bench has been appealed against by the Revenue? 2. Whether, in the facts and circumstances of the case, the Tribunal is right in not considering the fact that the imported or subject goods being old and used and second hand goods are otherwise also restricted for import in terms of the wordings of Para 2.17 of Foreign Trade Policy, that too by merely relying on the decision of CESTAT, Bangalore Bench? 3. Whether, in the facts and circumstances of the case, the Tribunal, Bangalore Bench was right in law by setting aside the order of confiscation in all these cases when the analog pho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommr. of Customs, Tuticorin V. Sai Copiers) and the decision of the Tribunal in Tribunal's Final Order No.1149 & 1150/2008 dated 07.10.2008 in Appeal No.C/111 & 112/2004 in the case of Kangra Overseas and Surya International. The plea of the Department is that the order of the Adjudicating Authority on fine and penalty should be restored on the ground that the restricted goods have been imported without any valid licence and that if the percentage of fine and penalty is reduced to 15% and 5%, it will encourage other importers to import restricted goods without licence, thus contravening the import policy. 9. Before the Tribunal, the importers relied upon the decision of this Court reported in 2008 (226) E.L.T.486 (Mad) (Commr. of Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present case has relied upon the various decisions including that of the decision of this Court reported in 2008 (226) E.L.T.486 (Mad) (Commr. of Customs, Tuticorin V. Sai Copiers) and the decisions of the Tribunal in the case of M/s.Shivam International and M/s. Sree Maa Enterprises - Final Order Nos.405 to 416/2011 dated 27.6.2011, only to come to a prima facie conclusion that the case does not deserve enhancement of redemption fine and penalty. There was no appeal filed by the importers against the order of confiscation and therefore, those findings are not relevant for the purpose of deciding the merits of the case, except to the extent that the Tribunal has decided the issue with regard to the enhancement of quantum of redemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scated. Thus, a discretion is vested on the authorities with a rider that the imposition of redemption fine should not exceed the market price. 10. Likewise, under Section 112(a) also, the statutory prescription is in the case of goods in respect of which any prohibition is in force under the Customs Act, or any other law the penalty imposable shall not exceed the value of the goods or Rs. 5,000/-, whichever is greater. In respect of dutiable goods other than prohibited goods, the penalty could be imposed not exceeding the duty sought to be evaded on such goods or Rs. 5,000/- whichever is greater. 11. Here again, the maximum that could be levied is only prescribed. There is no statutory prescription that the penalty should not be reduced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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