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TMI Blog2002 (10) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... produced by the importer; from 1-4-2000 import was permitted as above but SIL for five times of the CIF value was required to be produced; from 1-4-2001 onwards import of rough marble blocks is once again restricted. 3.Four appeals namely, appeal No. C/719/1999-Mum, Dipen Enterprises; C/903/1999-Mum, Sophisticated Marble Granite Industries; C/85/2000-Mum, Cosper Impex; and C/251/2000-Mum, Ramdhan Mohanlal Company Pvt. Ltd., all pertains to imports made prior to 1-4-1999. In certain appeals the Revenue has relied upon the decision of the Tribunal in the case of R.B. Enterprises (appeal No. C/408/98-Bom) to support the plea that the quantum of fine and penalty imposed by the adjudicating authority is very low and requires enhancement. In appeal C/85/2000-Mum, (Cosper Impex) and C/251/2000-Mum., (Ramdhan Mohanlal Company's) case the Revenue is aggrieved by addition of 10% on the CIF value, duty towards incidental charges to determine the landed cost. In the Ramdhan Mohanlal Company's appeal the department also seeks rejection of the price for rough marble blocks adopted by the Commissioner. 4.In the case of appeals C/96/2001-Mum, Mansi Impex; C/97/2001-Mum, Luckystone and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enses, such as, terminal handling charges, transport charges, interest charges, etc., were based on actuals. We find no error in the Commissioner's order in addition of 10% towards post importation charges particularly when it has been held by the Tribunal in the case of CC, Calcutta v. Star Enterprises - 1997 (94) E.L.T. 217 (T) that there is no straight jacket formula to allow such incidental or post importation charges. 11.The other plea of the department, namely, that higher fine and penalty were required to be imposed as these importers were repeated offenders, we find that in the case of Akash Stone Industries Others v. CC, Order No. CI/1375-1407/WZB/2002, dated 17-5-2002 [2002 (150) E.L.T. 667 (T)] the Tribunal has held that the allegation of repeated violation has to be established and if the supplier based on the same order confirmation continues to supply on different Bills of Lading either in the same shipment or different shipment, then multiple bills of entry would be only a natural corollary and that by itself cannot act as proof of repeated violation of Exim Policy. Repeated violation would need strict proof which we find missing in these cases and therefore reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht of the ratio of the above order, the plea for enhancement of fine and penalty on the ground of excess material imported is rejected. 15.The department has relied upon certain market enquiries to justify the market value of Rs. 25,000/- PMT for marble blocks for working out the margin of profit. No such market enquiry is on record. Hence enhancement of value is not justified. Further, in some cases the Commissioner has noted the actual sale of blocks in India (normally blocks are converted into slabs and sold) is at Rs. 8,500/- to Rs. 9,000/-. The department has not disputed that there were instances of sale of imported blocks at the above price. Therefore the price adopted by the Commissioner is required to be accepted and the price proposed by the department is required to be rejected. 16.We also note that, added together, the redemption fine and penalty wipe out the entire margin of profit worked out by the Commissioners in all these cases. In the case of CC v. K. Hargovindas Co. - 1992 (57) E.L.T. 143 the Tribunal has held that the adjudicating officer may in his discretion offer the party importing, option to pay fine and may also in his discretion fix such amounts tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mits redemption of the goods on payment of fine in lieu of confiscation. Where such option is exercised within the period prescribed, the title of the goods passes back to the claimant. If the option is not availed of then the title continues to vest in the Government. 20.For ease of reference the relevant portion of the Section is reproduced below :- "SECTION 125 - (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall in the case of any other goods, give to the owner of the goods or, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit : Provided that, without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon." The Tribunal in the case of Reydertrac Exports [1999 (106) E.L.T. 379 (T)] have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had been made by the adjudicating authority to this element. In essence the consideration for a purchase would be twofold - 'white portion' which would be by "cheque" and "black portion" that would be in "cash". The building industry is the most susceptible to this phenomenon. Consequently the high valued elements forming raw materials like marble for the buildings also have substantial 'cash' elements attached to their sale. 24.Even in the case of 'normal' goods the forces of demand and supply would determine market price. The existence or otherwise of local tax would also have positive bearing. This is the reason that the prices of even 'standard' gold varies from city to city. 25.Thus determination of a reasonable spread of price of a single commodity is also a difficult task. The Adjudicating authorities have neither time nor resources to conduct this enquiry. He/She therefore has to accept the judgment of the assessing officers. It is not that the assessing officers have any investigative machinery. In the case of agricultural products, spices and metals the financial papers carry daily price ranges. But in the case of high priced consumer luxury goods no such printed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y difficult to assess even approximately the correct value on which to determine the quantum of fine. In appeals filed by the Revenue therefore merely a higher figure is specified. Sometimes to make a justification, recourse is made to an empirical formula. In a number of appeals in this batch, in the face of a direct quotation or the price of slabs, a circumvential quanta is adopted to arrive at the value by taking the value of blocks and working forward therefrom. If such a quixotic device is to be tolerated, it would make a mockery of the process of determination of prices. 32.As I have observed above in a number of appeals it has been stressed that the Respondents were habitual offenders who had imported a number of consignments of marble in the face and knowledge of prohibition of such imports without any possession of valid import licences. Directions and instructions of the Board have been cited. 33.In terms of the observations of the Supreme Court, each adjudication order is independent and the previous conduct of the offender cannot have bearing on the issues involved in that case. The Revenue cannot cite this ground for review. 34.The law gives a number of weapons t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23-1-1998 24,00,000/- 2. C/903-V/1999-Mum Sophisticated Marble Granite Industries China Iran 786 21-3-1998 12,00,000/- 24,00,000/- 789 790 24-3-1998 1,00,000/- 3. C/85/2000-Mum Cosper Impex Pvt. Ltd. Iran 246, 247 248 3-7-1998 65,00,000/- 10,00,000/- 412 4-7-1998 4. C/251/2000-Mum Ramdhan Mohanlal Co. Pvt. Ltd. Iran 514 16-10-1998 32,00,000/- 5,00,000/- 525 10-10-1998 5. C/1024/2000-Mum Classic Marbles Iran 7770171 24-11-1999 65,000/- 13,000/- 7770181 2-12-1999 6. C/96/2001-Mum Mansi Impex Italy 7770327 25-3-2000 1,45,000/- 36,000/- 7. C/97/2001-Mum Lucky stone Iran 7770271 15-2-2000 8,18,000/- 2,05,000/- 8. C/98/2001-Mum Stonemann Marble Industries Greece Italy 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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