9911796707
TMI Blog2019 (1) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... ncurred demurrage for more than one month. In these circumstances the redemption fine should have been of the lower amount. There is no mis-declaration of value and goods are not liable for confiscation under Section 111 (m) of the Act and appellant had accepted the enhanced value and duty was paid in excess on enhanced assessable value from declared value to USS 1.316 (when they only agreed up to USD 1.10) and the importer had paid the extra duty - enhanced assessed value is confirmed - confiscation under Section 111 (m) of the Act set aside but the confiscation under Section 111 (d) of the Act is upheld. Imposition of penalty - Held that:- Since the goods were liable to confiscation only under Section 111(d) and have been confiscated, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be confiscated on the second charge of misdeclaration of value under Section 111(m) of the Customs Act, 1962 as the department could not bring any evidence which showed that the value declared in the subject bills of entry were misdeclared, thus leaving non-possession of a valid licence as the only offense to render the goods fit for confiscation under Section 111(d) of the Customs Act, 1962. Revenue has filed the present appeal praying for setting aside the Order-in- Appeal and restore the assessment made in case of Bills of Entry No.3763703 dated 30.12.2015 passed by the Deputy Commissioner of Customs, Group 3, Custom House, Kolkata. 5. Revenue is represented by Shri S.Guha, AC(AR), none is present for the respondent. 6. Hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition of penalty is sustainable in law. However, while imposing personal penalty the adjudicating authority observed in its OIO that in past in identical cases penalty equivalent to 10% was imposed and he imposed penalty of 11% giving no justification for such variation. I find that the penalty should not be imposed in such a fashion but circumstances of each case and role of importer should be examined case to case basis before imposing personal penalty. Although imposition of penalty is discretion of adjudicating authority but discretion must be exercised judiciously. In very old famous judgment in the case of sharp Vs. Wakefield reported in 1891 appeal case at page 179, wherein it was held that discretion means when it is said that so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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