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TMI Blog2021 (10) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... ted only with regard to bill of entry no. 999964 dated 20th October 2005 since the monetary limit in case of other two bills of entry is below Rs. 20 lakhs. Mr.Jetly stated that there are circulars and instructions received to not to press the case where the subject matter of dispute is below the limit prescribed for High Court, i.e., Rs. 20 lakhs. 3. Admittedly, respondent had imported restricted item without specific import licence issued by proper authority, i.e., the Director General of Foreign Trade. It is alleged by Mr.Jetly that respondent was a repeat offender and in the past also the goods imported were cleared on payment of redemption fine in lieu of confiscation of the goods. 4. In the present case, respondent had waived issuance of a show cause notice and requested that the case be adjudicated without conducting a personal hearing. Respondent's case was adjudicated by Commissioner of Customs (Imports), JNCH, Nhava Sheva [COC (I)] and COC (I) passed an order dated 16th December 2005 and received on 3rd January 2006 whereby, with regard to the bill of entry no. 999964 dated 20th October 2005, he ordered confiscation of the goods which were valued at Rs. 44,46 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... useful to reproduce the relevant portions of those orders. Paragraphs 4 & 5 of the order of the COC (I) read as under : "4. The facts of the case are self explanatory - the item under import Rough Marble Block is restricted as per the EXIM Policy 2004-2009 and hence its impost requires a specific licence. No such licence is admittedly available and has been produced. There is thus a violation of Section 3(2) of the Foreign Trade (Development & Regulation) Act, 1992 read with the EXIM Policy. The goods thus are liable for confiscation since their import in the absence of any such licence is a contravention of the provisions of Section 111(d) of the Customs Act, 1962. The importers are held to be persons concerned with the offence and hence are liable for penalty in terms of Section 112(a). The importer has pleaded for restricting fine/penalty to 35%. However, given the facts of the case viz. that the fact of import rough marble blocks requires a specific licence being a well established requirement of the Foreign Trade Policy, this is untenable. ORDER 5. Having regard to my findings. I order confiscation of the goods valued at Rs. 44,46,247.63 imported vide B/E No. 999964 date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree cases from Rs. 30,00,000/- to Res.37,00,000/- and Rs. 21,00,000/- to 35% of the determined value of the goods, which worked out to approximately Rs. 13,37,000/- to Rs. 16,57,000/- and Rs. 9,68,305 ? 2. Whether on the facts and circumstances of the case, the Hon'ble Tribunal was right and justified in law in intervening with the amount of redemption fine, imposed under Section 125 of the Customs Act, 1962, on the Respondents for unauthorised import of restricted items without which specific import licence, by reducing the redemption fine from Rs. 30,00,000/- Rs. 37,00,000/- and Rs. 21,00,000/- to 35% of the determined value works out to Rs. 13,37,000/-, Rs. 16,57,000/- and Rs. 9,68,305/- approximately. 3. Whether in the facts and circumstances of the case, reduction of redemption fine imposed on an importer for unauthorised import of restricted items to the extent that the importer will be able to make profit even after paying the fine and penalty and thus giving an incentive to continue to import such restricted item, is justified in law and whether a substantial question of law can be said to have arisen out of an order of the Tribunal reducing such redemption fine im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on fine which could be imposed is always dependent on the determination of the market price of the goods confiscated. This is one of the pre-requisites prescribed in the statute itself. In the present cases where not even a sample market survey was done for determining the market price of the goods, it could not have been possible for the Commissioner to arrive at a legally justified and correct quantum of redemption fine to be imposed. Any such determination would also be without following the procedure prescribed under the Act. 15. We also feel that as of now also, no useful direction could also be given to the Commissioner to get a market survey made even at this stage due to lapse of number of years in the meantime and also because of the fact that no sample of the goods imported by the respondents has been retained or kept by the Department. Therefore in our considered opinion, in the aforesaid appeals, no useful purpose would be served by interfering with the orders passed by the Tribunal, particularly in view of the fact that even the Department is unable at this time to ascertain and determine the market price of the goods confiscated so as to enable the authorities to le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been adduced by the revenue to establish that the order of the Tribunal is ex facie perverse, arbitrary & contrary to the facts on record. ......... 15. Thus tested, we are in complete agreement with the High Court that the questions raised by the Revenue for reference could not be said to be questions of law. It bears repetition that the Revenue did not specifically challenge the finding of the Tribunal that the facts in the instant cases were similar to those in M/s. Stonemann Marble Industries (supra), which was essentially a finding of fact. Although, we do find some substance in the submission of learned counsel for the Revenue that a standard formula cannot be laid down for imposition of redemption fine and penalty under the aforenoted provisions of the Act and each case has to be examined on its own facts but when a final fact finding body returns a finding that the facts obtaining in each of the cases before it are similar, and such finding is not questioned, levy of redemption fine or penalty uniformly in all such cases cannot be construed as laying down an absolute formula, which is the case here. We are convinced that the Revenue did not discharge its burden under S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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