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TMI Blog2017 (7) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... by this Court: "1. Whether the second respondent is correct in coming to the conclusion that no redemption fine can be imposed with harmonious reading of Section 125(1) and 126 of the Customs Act, 1962? 2. Whether the second respondent is correct in coming to the conclusion that a penalty of Rs. 1,00,000/- would be fit the offence found against the first respondent " 3. The learned counsel for the Revenue at the very outset, states that he does not wish to press question No.2 pertaining to penalty, in view of the fact that the penalty imposed is below the monetary limit fixed in Circular: 390/Misc./163/2010-JC(8-2011) dated 17- Aug-2011. The record shows that the Adjudicating Authority had imposed a penalty in the sum of Rs. 5 lakhs, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile dispatching the goods and hence, a lenient view of the matter ought to be taken. The assessee, evidently, agreed to pay differential duty. 4.3. Consequent there to, a show cause notice was issued to the assessee to which a reply was filed. The assessee in his reply denied the allegations made in the show cause notice. 4.4. Upon the assessee's request, the subject goods were re-examined. The re-examination revealed that 70,261 Metric Tonnes (MTs) out of the total quantity imported were tin-free sheet, while the balance quantity equivalent to 198.673 MTS was tin Sheets (secondary). It appears that though the Adjudicating Authority accepted the second examination report, it ruled that it was a case of deliberate misdeclaration with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )SCC 361]. This Court while setting aside the Judgment of the Tribunal, remanded the matter to it, for a fresh consideration on merits. 4.8. It is in this context that the Tribunal was required to take up the matter in the second round. The Tribunal by virtue of the impugned Judgment, as indicated above, has sustained the penalty, having regard to the observations made by this Court in its Judgment dated 13.9.2006, wherein it held that mens rea was, not a necessary ingredient for imposition of penalty. The Tribunal, however, in the facts and circumstances which obtained in the case reduced the penalty from Rs. 5 lakhs to Rs. 1 lakh. 4.8. Insofar as the aspect pertaining to whether or not redemption fine was liable to be imposed on the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 78.15 Mts, as per Bill of Entry No. 12198 dated 19.04.2001 - Rs. 39,19,853.00 Duty on the above - Rs. 24,64,019.00 Value of Tin Plats 20.523 MTs. Covered by Bill of Entry No. 8783 dated 19.04.2001 - Rs. 4,51,570.00 Duty on the above - Rs. 2,83,857.00 Total value including duty of 198.673 Mts. of Tin Plate - Rs. 71,19,299.00 5% clearing expenses - Rs. 3,55,965.00 Landed cost - Rs. 74,75,264.00 Landed cost Per Metric Tone - Rs. 37,625.00 Market Price of Similar goods (PMT) - Rs. 35,000.00 Profit/Loss Margin:- Market Price Landed Cost CIF 35,000.00-37625.00 w 22,000.00 = 12% (Loss) The above data have not been disputed in quantitative terms Under the proviso to Section 125 (1) of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat whenever confiscation of goods is ordered, the officer may give the owner of the goods or where the owner of the goods is not known, the person from whom possession or custody of the goods is seized, option to pay in lieu of confiscation, such fine as he thinks fit. A plain reading of the section shows that this option would also extend to those confiscated goods, the importation or exportation of which is prohibited under the Act or any other law for the time being in force. 7. The proviso to sub-section (1) of Section 125 of the Act states that without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the goods confiscated less the duty chargeable in case of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector of Customs [1993 (68) E.L.T. 525 (Cal)]. Based on this Judgment, Mr. Murugappan has submitted that the purpose of imposing redemption fine is to mop up to the maximum extent, the possible profit that the assessee may earn on the subject goods, if they are released to him against payment of fine. 11. Having examined the record and heard the learned counsels for the parties, we are inclined to agree with the counsel for the revenue that the Tribunal did not bear in mind, the scope and ambit of Section 125 of the Act. In particular, the Tribunal as indicated above lost track of the fact that the proviso only mandates that the redemption fine should not exceed the market value of the confiscated goods after due adjustment has been ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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