AI Drafter 
TaxTMI 
TaxTMI 
1993 (11) TMI 131
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.... the certified copy of the orders of the Honourable High Court of Calcutta. In the circumstances the miscellaneous application 179/93 is allowed, and appeal C-68/85 is taken on file. 2. In this case, the Tribunal passed on Order No. 225/A/Cal/88-225 dated 14-7-1988 dismissing the Appeals filed by the appellants. The Reference Application filed by the applicants was dismissed by this Tribunal. The appellants approached the Honourable High Court of Calcutta under Section 130(1) of the Customs Act, 1962 and the Honourable High Court directed the Tribunal to refer a question of law for decision, which is as follows :- "Whether on the facts and in the circumstances of the case, the finding of the Tribunal upholding the charges levelle....
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....ine was duly shipped by the foreign supplier on 30th March , 1982 on the Vessel `Kastro-K' that is, within the period permitted under the import policy for the year 1980-81. All the relevant shipping documents relating to the said machine namely Bill of Lading, supplier's invoice, packing list etc., were duly received by the applicant and negotiated by its bank under the said Letter of Credit for 15% of the price of the machine. The said vessel `Kastro-K', however, could not arrive at Calcutta as it was detained at Piraeus Port in Greece. The detention of the said vessel was an arbitrary, high-handed and illegal act which resulted in unloading and detention of the cargo carried by the said vessel including the said machine. Several legal pr....
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....er that the said machine had a screw diameter of 6" (152-4 mm) under the impression the goods which had been supplied were in accordance with the terms and conditions of the applicant's order placed as per the catalogue of the supplier and the proforma invoice. In the said Bill of Entry, the applicant duly stated the fact of shipment of the said machine originally on the vessel `Kastro-K' on 30th March, 1982 and its impounding at the Greek Port. However, on examination, the diameter of the screw was found to be 150 mm only by the Customs authorities. The customs authorities also alleged that the Import Policy for 1983-84 did not specify extruder as an item under O.G.L. The Import Policy for the year 1980-81 which permitted the impo....
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.... diameter overlooking the fact that the said machine was originally supplied with screw of 152-4 mm diameter and the replacement should have been with a screw of that diameter. The said representative admitted the mistake on the part of the foreign supplier and offered to replace the barrel and screw. By his order dated 9th November, 1984, the Collector of Customs ordered for confiscation of the said machine and allowed the applicant to redeem the same on payment of redemption fine of Rs. 8 lacs. A personal penalty of Rs. 2 lacs was also imposed under Section 112 of the Act on the applicant. Against the said order of the Collector of Customs, an appeal was preferred by the applicant before the Customs, Excise and Gold (Control) Appellate....
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....g points are to be determined by the Tribunal :- (1) Whether the goods in question are liable for confiscation? (2) Whether the appellants are liable to be penalised under Section 112 of the Customs Act? 6. The matter was discussed at length by the Honourable Court. In pages 12 and 13 of the orders passed by the Honourable High Court of Calcutta, their Lordships held as follows :- "The principles which can be culled out from the aforesaid decisions are that facts and circumstances relevant to the bona fide conduct of an importer in importing the goods and the extenuating circumstances leading to the import have to be taken into consideration for determining as to whether the goods should be confiscated and any redemption fi....
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.... not warranted. Both in cases of fine and penalty, it is the non-observance of law by the person concerned which is required to be established in the first instance. In our view, the principles laid down by the Supreme Court in Hindustan Steel Ltd. (supra) have to be kept in mind and duly applied, mutatis mutandis, in cases of confiscation of goods and imposition of redemption fine as well. In the instant case, however, the Tribunal fell in error in holding that the question of intention is irrelevant in deciding upon the confiscation and quantum of redemption fine. The instant case is a fit one where confiscation should not have been made having regard to the bona fide conduct of applicant." 7. It is, therefore, seen that the Honou....