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TMI Blog2023 (12) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... ded w.e.f November 2021 as per the Agriculture Ministry's Order No.18/23-2015-PP II (e-16587) dated 07.12.2021. Further, it appeared that the goods were undervalued. Hence thorough examination of the documents and the goods were ordered to be carried out in respect of all the Bills of Entry filed by the importer. 2. On examination of the containers, it was found that the 86 crates of Kiwi fruits were having Iranian markings on the plastic material covering the crates and 7 wooden pallets used for packing of the said kiwis were having Iranian fumigation markings. On further examination of the records and documents submitted by the importer, it was seen that the importer had purchased said cargo on High Sea sale basis from M/s. Ochelle Inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w, the original authority vide order dt. 13.1.2023 ordered for confiscation of imported goods, "Kiwi Fruits" totally valued at Rs.1,21,15,314/- under Section 111 (d) of Customs Act, 1962 and also ordered for re-export of the said goods on payment of redemption fine of Rs.20,00,000/- . A penalty of Rs.10 lakhs was imposed on Shri Ram Prasath, Proprietor of M/s. Ram Traders ( appellant- importer) under Section 112 (a) of the Customs Act, 1962. A separate penalty of Rs.10 lakhs was imposed under Section 114AA of the Act ibid. On appeal, Commissioner (Appeals) vide order impugned herein reduced the redemption fine to Rs.5 lakhs and also reduced penalty imposed under Section 112 (a) and Section 114AA to Rs. 5 lakhs and Rs.10 lakhs respectively. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be set aside. 7.2 With regard to the penalty imposed under Section 112 (a) (i) of Customs Act, 1962 as well as Section 114AA of the Act ibid, learned counsel submitted that the purchase of goods was on high sea sale basis and that they are not the original buyer. It is argued by the learned counsel that appellant was unaware of the non-genuineness of the documents furnished by the supplier. It is submitted that the Commissioner (Appeals) in para-9 of the order has noted that the contention of appellant that they were not aware of the forgery of documents cannot be brushed aside completely, though there is room to doubt the bonafides of the importers. 7.3 The decision of the Tribunal in the case of Goyal Trading Co. & Others Vs CC Nhava Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A Table is provided in the said paragraph which gives the details of the manipulations found in the forged documents submitted by the importer. At Sl.No.1, it is seen that the Phytosanitary certificate of UAE refers to goods of Chile origin. In the said original certificate, additional declaration has been left blank, whereas in the forged Phytosanitary certificate of the same number submitted by the Importer, additional declaration viz., Free from A) Aspidiotus Neril (Aucuba Scale) B) Trialeurodes Vaporiorum (Glasshouse Whitefly) etc. have been added. In similar manner, all the 5 certificates have been examined and noted by the adjudicating authority as to the extent of manipulation and forgery committed in the certificates. It is the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or invalid as per law. This issue is held in favour of department and against the appellant. 11. The challenge in the present appeal is confined to redemption fine and the penalties imposed. The Commissioner (Appeals) has reduced the redemption fine from Rs.20 lakhs to Rs.5 lakhs and the penalty imposed under Section 112 (a) from Rs.10 lakhs to Rs.5 lakhs. The penalty imposed under Section 114AA is reduced from Rs.20 lakhs to Rs.10 lakhs. In para-9 of the impugned order the Commissioner (Appeals) has noted that there is no margin of profit as the goods are ordered to be re-exported. Further, it is also to be seen that the appellant has incurred huge loss due to demurrage charges etc. as the goods have been ordered to be re-exported. The go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale basis. The same cannot be accepted. However taking into consideration that the goods are being ordered to be re-exported, and also that the appellant has incurred huge demurrage charges, I am of the view that the penalty imposed under Section 112 (a) (i) can be reduced from Rs.5 lakhs to Rs.4,00,000 lakhs (Rupees Four lakhs only). So also, I reduce the penalty imposed under Section 114AA of the Act from Rs.10 lakhs to Rs.8,00,000/- (Rupees eight lakhs only). 14. In the result, the impugned order is modified to the extent of setting aside redemption fine of Rs.5 lakhs without disturbing the order to re-export the goods. The penalty imposed under Section 112 (a) is reduced from Rs.5,00,000/- to Rs.4,00,000/- (Rupees Four lakhs only). Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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