9911796707
TMI Blog2014 (11) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... allowing the appeal of the respondent. Brief facts of the case necessary for adjudication of the appeal are that against value declared by the appellant of imported consignment of old and used photocopier machines at Rs. 10,56,473/-, vide bill of entry No.0017, dated 30.1.2008, the respondent on the basis of inquiry formed an opinion that the consignment consisted of different canon made model, that the value of the goods as per contemporaneous import data should be Rs. 16,00,653/- and since the appellant had imported machines without getting licence from the authorities as required for import of second hand photocopier machines the same being restricted items in terms of para 2.17 of the Foreign Trade Policy (2004-2009), therefore, the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that dose of redemption fine and penalty would deter illegality as also the same being perpetuated, the Tribunal restored the adjudication order and upheld redemption fine, but reduced the amount of penalty from Rs. 16.00 lacs to 8.00 lacs. We have heard learned counsel for the parties and perused the impugned order. Learned counsel for the appellant argued that although as per commercial invoice and packing list the goods were photocopier machines yet the machines were not simple photocopier machines, but multi functional machines as per survey carried out by Chartered Engineer (Annexure A-8). The Tribunal in the case of Shivam International Vs. Commissioner of Customs 2012 (286) ELT 545 had held that used digital multifunctional print an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 100% in another case. In the light of above, it was contended that the amount of fine and penalty needed to be reduced substantially. Learned counsel for the appellant further contended that quantum of redemption fine could have been equal to the margin of profit, which was very low in the instant case as second hand photocopier machines were freely available in the market and no such market inquiry had been conducted. Learned counsel further contended that there were several judgments, where such machines in similar factual situations were allowed to be redeemed on a fine of 10% of the value of goods and by imposing penalty equally to 5% of the said value. Learned counsel for the appellant while referring to the decision of the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y purchased by small scale entrepreneurs or unemployed youths to earn their livelihood and that old and used photocopiers were cheaply available in the market. However, in this view of the matter, imposition of fine Rs. 8.00 lacs and penalty of Rs. 8.00 lacs was wholly unjustified and unwarranted and the order by the Tribunal required to be modified on the ground of the same being unduly, harsh and unjustified. On the other hand, on behalf of the respondent-Department, it was urged that imposing of redemption fine and penalty had compulsorily to be prohibitive so as to dissuade import of restricted goods and to make the same prohibitive and non-profitable. Learned Counsel for the appellant stated that in view of his statement dated October ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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/- which ever 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 by the appellate authority. Before the Tribunal, the importers relied on the earlier order of the Tribunal in the case of Sri Venkatesh Enterprises Vs. Commissioner of Customs, Chennai [2005(192) ELT 818 = [2005-TIOL-363- CESTAT-DEL)] wherein the quantum of redemption fine imposed in lieu of confiscation of second hand photocopiers valued at Rs. 17.7 lakhs was restricted to Rs. 2.5 lacs and the quantum of penalty was restricted to Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Vs. Commissioner of Customs 2010 (262) E.L.T. 536. In the last case, it was ordered that redemption fine shall not be in excess of 15% of the value of imported goods, whereas penalty of 5% of value on imported goods as certified by chartered engineers was upheld. It may be noticed that in these three cases cited by the appellant, there was import of second hand photocopier machines etc.; so is the case in the present appeals. 17. In these appeals, the Tribunal had noticed that the appellant had not cited any comparable cases where redemption fine had been reduced to 10% and penalty to 5%. The appellant citing these judgments of the Tribunal has convincingly shown that there have been instances, where the Tribunal had considerably reduce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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