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TMI Blog1990 (1) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... he Collector of Customs (Kandla Port) and he imposed a redemption fine of Rupees five crores against the petitioners on the assumption that the imported good was a canalised item. The petitioners challenged the order of the Collector of confiscation by a writ petition before the Delhi High Court on a number of grounds including the ground that the 'industrial coconut oil' was not a canalised item as it was not included in the expression 'coconut oil' as mentioned under Entry 5 Appendix 9 of the Import Policy of 1980-81. A Full Bench of the High Court [1987 (29) E.L.T. 753 (Del.)] by majority held that 'industrial coconut oil' was included within the expression `coconut oil' and as such the same was canalised item, it could not be imported b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government that 'industrial coconut oil' was not a canalised item, this Court observed, that those facts and circumstances were relevant for determining the quantum of redemption fine which is to be considered by the Tribunal in terms of the directions of the High Court. This Court did not enter to the question of quantum of redemption fine instead it left the matter open for consideration by the Appellate Tribunal according to the directions of the High Court. These directions are contained in para 72 of the judgment of Sachar, J. which was the majority judgment. The judgment is reported in 1987 (29) Excise Law Times 753 (Delhi). The learned Judge observed thus : "I would, in the circumstances, remit the matter to the Appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en done. There is no allegation before us that the fines imposed by the Collector had exceeded the upper limit set by Section 125 of the Customs Act, namely, the market price of the goods less the duty chargeable thereon. In these circumstances, we would be slow to interfere with the discretion which the Collector had exercised in fixing the quantum of redemption fines unless it be shown to us (and it has not been shown to be so) that the order suffers from infirmity, bias or perversity." The above observations of the Appellate Tribunal make it apparent that it misconceived the directions issued by the High Court. 5. Before the Appellate Tribunal the petitioners pointed out that they had bona fide imported the goods on the belief that `in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected in coming to the conclusion that the import was illegal. These, therefore, could not again be urged now before the Tribunal as extenuating circumstances. Only fresh factual material such as sale income, expenses etc. if submitted by the importers before the Tribunal, could be taken into account now." The above observation of the Tribunal makes it amply clear that it failed to consider the question of bona fide in proper perspective. The High Court and this Court had requested the extenuating circumstances in determining the legality of the import, but nonetheless those factors and circumstances are relevant in determining the quantum of redemption fine. The Appellate Tribunal was bound to consider those facts and circumstances in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of the Tribunal's observation that the Collector's order imposing redemption fine of Rupees five crores was not passed on any material, this Court should determine the redemption fine on the basis of 35% of the landing cost of the goods as has been done by the Department in similar cases. We do not consider it fit or proper to determine the quantum of redemption fine as in our opinion primarily the determination of quantum of fine should be made by the statutory authorities constituted under the Act. We therefore reject this contention of the petitioners. 8. In view of the above discussion, we allow the writ petition and set aside the order of the Appellate Tribunal dated 5th December 1986 and remand the matter to the Appellate Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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