TaxTMI 
TaxTMI 
2013 (8) TMI 132
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....ed penalty to Rs.4.00 Lakhs as against penalty of Rs.17.00 Lakhs imposed in adjudication. 2. Revenue is in Cross Appeal against the same appellate order dated 14.07.2008 challenging reduction of redemption fine and penalty. Accordingly, both sides are in appeal for the respective relief they sought. 3. Challenge of the appellant in above appeal is that enhancement of the value of the imported old and used photocopier machines was arbitrary and neither redemption fine nor penalty was imposable. C/688/2008 4. The importer Bhagwan Electro Photocopiers is in appeal No. C/688/08 against order in appeal dated 14.07.2008 challenging that to be unsustainable which held that the value of Rs.9,30,150/- declared by that appellant in respect of old and used photocopier machines imported by bill of entry No.17 dated 30.01.2008 was low compared to the NIDB date for which that should be enhanced to at Rs.16,00,653/- and confirmed the adjudication order on such appeal. So also confiscation was held to be proper in law as the impugned goods imported without licence. However, the order passed by ld. Commissioner (Appeals) reduced the redemption fine to Rs.4,00,000/- as against Rs.8,00,00....
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....ls Customs has also applied Rule 8 of the Customs Valuation Rules, 1988. The manner of valuation was not challenged by any of the appellants. 9. Appellants in both the cases only challenged that when they declared proper value that should not be disturbed. But Revenue repels that argument on the ground that they have imported the goods without import licence while licence became necessity of law w.e.f. 10.10.2005. So also when the value were not declared properly that was bound to be enhanced under Rule which was usually done by Customs. Nothing could be contradicted by appellant producing any evidence as to possession of licence nor evidence relating to purchase of the goods at a lesser value under any peculiar trade/import conditions or circumstances. They failed to substantiate the value declared by them to be proper in law. 10. It was a fact on record that the importer appellants were importing similar such goods in past which was noticed by ld. Adjudicating Authority in respective adjudication orders. When he found that they repeatedly imported above goods without licence and mis-declaring value thereof he considered that levy of redemption fine to the extent indicated i....
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....of course, well settled that in Taxing Statute the words used are to be understood in the common parlance or commercial parlance but such a trade understanding or commercial nomenclature can be given only in cases where the word in the Tariff Entry has not been used in a scientific or technical sense and where there is no conflict between the words used in the Tariff Entry and any other Entry in the Tariff Schedule. Since the said para 2.17 in the Policy has not used any expression identical to any Tariff entry, much less in a scientific or technical sense, the restriction on old/used photocopier machines has to be understood in the common parlance. The learned counsel raises a point that import policy is to protect the local industry and that since there are no manufacturers of the impugned goods in India, the entire requirement is met by import and there can be no restriction to import such goods. In fact import of the photocopier machines as per the policy and the ITC HS Schedule is free for the new equipment including multifunction equipment. The restriction is only in respect of secondhand photocopier machines. The understanding of the DGFT, is also that the multifunction d....
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....gle/multiple uses. 19. As regards the point raised by the learned counsel that in the show-cause notice there was no case made out for the goods being restricted for import as e-waste, we agree that it is so and the impugned order also does not hold the impugned goods to be e-waste and hence, we are not required to give any finding in this regard. 20. In view of our findings as above, we are of the considered view that the import policy restricting import of secondhand photocopier machines is applicable to all kinds of photocopying machines including analog photocopiers, digital photocopiers and multifunction copying and printing machines whose primary function is photocopying and which requires printing for the purpose of completing the photocopying process and producing a photocopy. The expression used in the import policy is not identical to any of the expressions in any of the Tariff Headings nor any particular Tariff Heading is mentioned in the import policy restriction and hence the expression photocopier machines in the policy is to be interpreted as commonly understood to include all those machines which are used for photocopying. As held by the Hon'ble Supreme Court....
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....s and the same cannot be considered to be excessive and therefore, it calls for no reduction. The question of imposing higher fine and penalty in respect of repeated offenders has been adequately dealt with by the Tribunal in the case of Sagar Enterprises (supra). The relevant extract is reproduced below: 11. After hearing both sides and perusal of the case records and the cited case laws, I find that there is only a short question to be decided in respect of these seven appeals. That question is whether the lower appellate authority was justified in reducing the redemption fine and penalty to a lower level of 15% and 5% (total 20%) uniformly in all these cases, thereby interfering with the discretionary power exercised by the original authorities. I find that several batches of cases have been decided earlier by the Tribunal Benches at Chennai and Bangalore as evidenced from the orders cited before me. It is quite obvious that despite imposition of fines and penalties on such imports, large scale imports of these goods are taking place at ports of Chennai, Tuticorin and Cochin at undervalued prices and without necessary import licences. It is quite obvious that the low levels o....
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....ning these appeals. Hence the appeals are dismissed. 14. From the above cited decision of the Hon'ble Madras High Court, it is clear that fixation of the quantum of redemption fine is an exercise of discretionary jurisdiction of the authorities under the Customs Act. It is also clear that the fixation of the quantum of redemption fine and penalty can only be interfered if the same is fixed in an arbitrary and whimsical manner resulting in miscarriage of justice. The Hon'ble High Court has also held that there is no statutory prescription that the penalty should not be reduced by the appellate authority and also that in the Departmental appeal against the Tribunals order in the cited case there was no question of law involved. The cited decision of the Hon'ble Madras High Court nowhere imposes a restriction on the discretion of the customs authorities nor it can be taken to authorize imposition of a low level of fine and penalty even in cases of repeated imports contravening the provisions of Import Policy, mis-declaring the value of the goods as found in all these seven cases. As such, it appears that the lower appellate authority was not correct in placing reliance on the afor....
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....ation Commissioner and Others [1975 (1) SCC 737] ruled that the writ jurisdiction of High Court under Article 226 of the Constitution of India is not intended to facilitate avoidance of legal obligation and to commit breach of law for the time being in force. The extraordinary jurisdiction of the High Court under Article 226, which is of a discretionary nature and is to be exercised only to advance the interest of the justice, cannot certainly be employed in aid of such persons; who have no respect for the law of land and who are deliberately indulging in committing breach thereof This Court would not be justified in invoking writ jurisdiction in favour of such persons. Writ jurisdiction is available to further the cause of regime of law, not to abrogate the same. In the facts of this case the consignments confiscated by the Customs authorities cannot be allowed to be released on the licence which were sought to be produced by the petitioners. The importers who are importing goods without licence and then seek to validate the import by obtaining subsequent licence or licences cannot be allowed to take advantage of their own wrong. The petitioners are one of them. 5. The petition....
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....a duty cast upon them to prevent illegal imports and effectively implement the Import Policy validly laid down by the Government and to curb undervaluation and misdeclaration apart from preventing repeated offences. Hence, the lower appellate authority is totally unjustified in reducing the fines and penalties in these cases to very low levels totaling 20% only. Accordingly, I set aside the impugned orders passed by the lower appellate authority insofar as they relate to lowering of redemption fines and penalties and restore the orders passed by the original authorities. All the seven departmental appeals are allowed in the above terms. 23. Keeping the above observations of the Tribunal in the case of Sagar Enterprises (supra) in view, while we find no justification for reducing the fine imposed, we are of the view that the ends of justice would be met if the penalty is reduced from Rs. 13,70,000/- to Rs. 6,85,000/- (Rupees six lakhs eighty five thousand only) which comes to about 20% of the assessed value. The appeal is otherwise rejected except for the reduction in the penalty amount as indicated above. 14. Licensing regulation having been prescribed w.e.f. 19.10.2005 the a....