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TMI Blog2024 (9) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... ct the classification of the imported cargo under CTH 21069030 filed in the Bill of Entry no.7985049 dated 23.03.2022 and order reclassification of the impugned imported goods under CTH 08028020. iii. I hereby reject the declared assessable value of Rs. 71,94,380/- filed in the Bill of Entry No.7985049 dated 23.03.2022 and hold the redetermined assessable value of Rs. 3,48,13,322/- as mentioned in column 4 of table 3 of Para No.46. iv. I hereby order confiscation of the goods imported vide Bill of Entry No.7985049 dated 23.03.2022 under section 111(d) and 111(m) of the Customs Act, 1962 read with Section 3 of Foreign Trade (Development and Regulation) Act, 1992 with redetermined assessable value of Rs. 3,48,13,322/- as mentioned in column 4 of Table 3 of Para No.46. v. Consequent to above, I impose a Redemption fine of Rs. 50,00,000/- (Rupees Fifty lakhs only) in lieu of the option to pay fine /confiscation in terms of section 125 of the Customs Act, 1962. vi. I hereby hold re-assessed duty payable on the said goods at Rs. 3,82,94,654/- as per the value mentioned in column 4 of table 3 of Para No.46 under section 17 of the Customs Act, 1962. vii. I impose a penalty of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lder of public office, when exercising discretion conferred by the statute, has to ensure that such exercise is in furtherance of accomplishment of the purpose underlying conferment of such power. The requirements of reasonableness, rationality, impartiality, fairness and equity are inherent in any exercise of discretion; such an exercise can never be according to the private opinion. 165. It is hardly of any debate that discretion has to be exercised judiciously and, for that matter, all the facts and all the relevant surrounding factors as also the implication of exercise of discretion either way have to be properly weighed and a balanced decision is required to be taken." 32. Therefore, it is evident that on a reading of the order one must be able to infer the exercise of discretion which in the case of W.P.(MD) Nos.1250 and 1252 of 2023 is absent. 33. In the case of the petitioners in W.P.(MD) Nos.1250 and 1252 of 2023 there is no adverse comments as in the case of the petitioner in W.P. (MD) No.1391 of 2023, who is alleged to be a habitual offender violating the provisions of the Customs Act by removing the confiscated goods on an earlier occasion. The petitioners in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e earlier judgments of this Court, the Respondents are directed to consider the application of the Petitioner for provisional release under Section 110-A of the Customs Act and the same shall be disposed of by the Adjudicating Authority on merits and in accordance with law, within a period of one (1) week from the date of receipt of a copy of this order. 9. With the above direction, this Writ Petition is disposed of. No costs." 6. After the aforesaid order was passed, the Department has issued the aforesaid Show Cause No.226/2022 dated 24.11.2022. Meanwhile, the petitioner sent a request for re-export of the consignment on 11.12.2022 which was received by the Department on 13.12.2022. The said request was disposed of by the Department with following observations vide order dated 19.12.2022:- ORDER Hence, I allow re-export of Imported goods Imported vide BE No dated 23.03.2022 on execution of a bond for an amount of Rs. 3.41 (Rupees Three Crores Forty eight Lakhs Thirteen thousand Three hundrec two only) and on execution of Bank guarantee equal to Rs. 94,00,000, Ninety four Lakhs only). 7. It is in this background, the petitioner had filed W.P.(MD) No. 1391 of 2023 which came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the petitioner and the value declared in the Bill of Entry were rejected and the consignment covered by the aforesaid Bill of Entry was held confiscable under Sections 111(d) and 111(m) of the Customs Act, 1962 by giving option to redeem the goods for re-export on payment of fine of Rs. 15,00,000/- by sustaining a penalty of Rs. 20,00,000/- under Sections 125 & 112(a)(i) of the Customs Act, 1962. 12. It is submitted that the importer had got permission to move and store the said goods to a public bonded warehouse under Section 49 of the Customs Act, 1962. However, the petitioner had diverted the goods to a private warehouse, where they removed the imported goods clandestinely and substituted sawdust in the place of imported goods, thereby clearing the consignments once again in the market. At the same time, the petitioner was caught red-handed by the officers of the DRI Chennai Zonal Unit. 13. It is submitted that the petitioner also filed Anticipatory Bail Petition before this Court to evade the arrest in Crl.O.P.No.16291 of 2022 and an conditional bail was granted on 27.07.2022 subject to the payment of fine and penalty amounting to Rs. 35,00,000/-. 14. It is further sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orter: The subject case is not the first time for the importer, as the importer had already involved in an offence pertaining to the import of similar goods. The said importer had imported 34 MTs of similar goods i.e. 'Unflavoured Supari (Betel Nut Product)' in two containers vide bill of entry no. 5176713 dated 24.08.2021 last year by similar modus of misdeclaration/ mis-classification violating the said DGFT Notification No. 20/2015- 2020 dated 25.07.2018 and to evade payment of appropriate Customs duty. For the above said violation a case had been booked on the importer by the Special Intelligence and Investigation Branch (SIIB), Custom House, Chennai. Further, based on the request of the importer, the case was adjudicated without issue of Show Cause notice. The Additional Commissioner of Customs (Group 1) in his adjudication order had rejected the declared classification and value, confiscating the goods under Sections 111(d) and 111(m) of the Customs Act, 1962, giving option to redeem the goods for re-export on payment of fine of Rs. 15,00,000/- and sustaining a penalty of Rs. 20,00,000/ under Sections 125, 112(a) (i) of the Customs Act, 1962. The importer had got pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1285 of 2023 pending before the Hon'ble Division Bench of this Court against the order dated 28.06.2023 in W.P. (MD) No.1391 of 2023 and without prejudice to the rights of the petitioner in the remand proceedings. 23. Subject to the petitioner complying with the above requirements, all recovery proceedings shall be kept in abeyance pending further orders in the remand proceedings. All the issues relating to the classification, value and the amount of fine and penalty to be imposed is left open to be decided afresh in the remand proceedings. 24. It is expected that the petitioner will file reply within a period of 30 days from the date of receipt of a copy of this order and the orders will be passed by the third respondent within a period of 2 months thereafter. The petitioner shall co-operate with the remand proceedings. 25. In case, the petitioner fails to file reply or deposit the amount as ordered above, this order shall stand revoked sine die without further reference to this Court, in which case, the respondents are at liberty to proceed against the petitioner in the manner know to law. 26. In the result, this Writ Petition stands disposed of. No costs. Consequently, c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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