2004 (8) TMI 571

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.... the subject goods were not provided. The goods were valued at US $ 300 PMT (CIF) in terms of Rule 5 of the Customs Valuation Rules, 1988 and were ordered to be confiscated under Section 111(d) of the Customs Act, 1962 with a redemption fine of Rs.19.00 lakhs along with a penalty under Section 112(2) of Rs. 2.00 lakhs. Hence this appeal. 2. After hearing both sides and considering the matter, it is found - (a)     The reliance of the learned DR on the case of Mansingka Brothers, 1988 (38) E.L.T. 105 (T); Jain Exports Pvt. Ltd. 1993 (66) E.L.T. 537 (S.C.); Nanak Trading, 1998 (98) E.L.T. 381 (T); S.S.P. International, 2003 (158) E.L.T. 479; Sophisticated Marble CI/2745-2746/WZB/2003 (Cl/3051, 3052/ WZB/03), dat....

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....orts made as in this case in the year 2001 vide BE dated 23-11-2001 and the fines and penalty in that case be applicable and applied in this case. The quantum of fine and penalty have to be determined in this case based on the matrix of the imports and corresponding contemporary imports at Mumbai Port dealt with during the year end 2001. The quantum of fine and penalty in the case of Jai Bhagwati Impex [2002 (145) E.L.T. 158 (T) = 2002 (48) RLT 199 (Tri.)] also need not be compared with the present imports being in November, 2001 at Mumbai since that was an appeal disposed on 9-11-2000 and the imports were made earlier to that at Goa Port. These goods were released in November, 1998. Thereafter lot of imports have been made by many parties ....

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....r the first time importer. (d)    The law laid down in the Sophisticated Marble's case by the Bombay High Court was in the facts of that case and on finding arrived of a deliberate violation intent in that case. No such finding or material exists on record in this case. The case relied by the learned DR therefore does not enthuse us to uphold the fines and penalties at levels arrived at by the Commissioner. (e)     The established practice and precedent treatment effected to similar imports at Mumbai, at above the same time, has to be followed in the absence of any specific circumstances, in a particular import, to cause and alter the levels of fines and penalties to levels higher than those establis....

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....           Therefore in enforcing equal treatment to equals is fair application of discretion. If importers during the same period of imports of similar Marble Blocks have been allowed, the imports on fines and penalties of 20% and 5% of the CIF value, this importer cannot be denied the same equal treatment. His legitimate expectation on that ground have to be granted. (f)      It is found that the adjudicator in para 8 of the impugned order has recorded a fact to the effect 'It may be mentioned that Marble Blocks as such are not available for sale in the market. However, to arrive at market price of blocks per MT basis, the market price of the marble slabs has been ta....