TaxTMI 
TaxTMI 
2017 (5) TMI 446
X X X X Extracts X X X X
X X X X Extracts X X X X
....0000 4 C/529/2007 Sagar Enterprises 1005866 250000 150000 5 C530/2007 Sagar Enterprises 1218894 370000 200000 6 C531/2007 Rajeshwari Graphix 1596904 470000 250000 Sl. No. Appeal No. Appellant Assessable value (Rs.) Redemption Fine (Rs.) Penalty (Rs.) 7 C532/2007 Rajeshwari Graphix 946383 240000 140000 8 C533/2007 Rajeshwari Graphix 1728797 520000 280000 9 C534/2007 Rajeshwari Graphix 1213162 280000 140000 10 C/535/2007 Rajeshwari Graphix 1632840 400000 210000 11 C536/2007 Rajeshwari Graphix 895970 180000 100000 12 C/537/2007 Aishwarya Enterprises 1926686 450000 235000 13 C/538/2007 Aishwarya Enterprises 330394 65000 35000 14 C/539/2007 Aishwarya Enterprises 910951 225000 115000 15 C/540/2007 Aishwarya Enterprises 1231722 300000 155000 16 C/541/2007 Aishwarya Enterprises 960208 240000 130000 17 C/656/2008 Impact System Inc 2312360 575000 300000 2. For the sake of convenience, the facts of appeal No. C/526....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ricted in terms of para 2.17 of the Foreign Trade Policy read with para 2.13 of the Handbook of Procedure (import of second-hand capital goods are allowed freely). Based on the provisions of Foreign Trade Policy and Handbook of Procedure, the Customs Authorities issued show-cause notices under Section 124 of the Customs Act based on clarification issued in the Circulars alleging that the second hand photocopier were restricted for import and requires a valid import license and in the absence of such license, the goods were liable to be confiscated under Section 111(d) of the said Act read with para 2.17 of the Foreign Trade Policy and that the importers were liable to penalty under Section 112 of the said Act. The learned counsel further submitted that the different benches of the Tribunal took different views in the matter and therefore the issue was referred to the Larger Bench to resolve the conflicting conclusions. Accordingly, the Larger Bench in the case of Atul Commodities (P) Ltd. vs. CC, Cochin reported in 2005 (184) ELT 135 decided the issue by holding that the second hand photocopier qualify as capital goods and are freely importable in terms of para 2.33 of the Handbook....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ances, the Tribunal took a view to impose fine and penalty at 10% and 5% in many of the cases cited by the appellant. As this Bench cannot deviate from the ratio of its own decision, we find that in all these cases the fine and penalty should be fixed only at 10% and 5% of the value of the imported goods determined by the Chartered Engineer, respectively. Therefore, by following the ratio of the several decisions of this Bench we dispose of these appeals on the above terms. The above decision was upheld by the Hon'ble High Court of Kerala (Jurisdictional High Court) in the case of Commissioner of Customs v. Office Devices 2009 (240) ELT 336 (Ker.) Pg No. 45-47 = Commissioner of Customs v. Navpad Enterprises 2012 (278) ELT 172 (Ker.)Pg. No. 48-50, wherein it was held as follows: 8. The dispute being only on the rate of redemption fine and penalty which inter alia depends on the totality of the facts and circumstances in each case, we fail to see how any question of law, much less any substantial question of law could arise. A quasi judicial authority in exercising a power of discretion has to do it in an objective manner and cannot do so in a mechanical way. But we....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion fine imposed in lieu of confiscation of second-hand photocopiers valued at Rs. 17.7 lakhs was restricted to Rs. 2.5 lakhs and the quantum of penalty restricted to Rs. 85,000/-. The same was followed in the case of the respondents therein by the Tribunal. It was also held that the court can interfere only in such circumstances where it was demonstrated to be whimsical resulting in miscarriage of justice. 10. In Commissioner of Customs (Import) v. Shankar Trading Co. [2008 (224) E.L.T. 206 (Bom.)] a Division Bench of the Bombay High Court also took a similar view. It was held that when the Tribunal noted that for import of similar goods around similar time in other order of the Commissioner (Appeals) the penalty and redemption fine was reduced and once the Tribunal relied on the judgment for reducing penalty and fine, it cannot be said that no reasons were given and consequently no substantial question of law arises. 11. The learned standing counsel appearing on behalf of the appellant placed reliance on the decision in Jain Exports Pvt. Ltd. v. Union of India [1993 (66) E.L.T. 537 (S.C.)]. In that case, the Apex Court, while considering the quantum of redemptio....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 9. From the reading of the above provisions, it is clear that the statutory requirement is that the imposition of redemption fine shall not exceed the market price of the goods confiscated, less in the case of imported goods, the duty chargeable thereon. The language employed shall not exceedindicates that the authorities under Act are empowered to impose redemption fine less than the market price of the goods confiscated. Thus, a discretion is vested on the authorities with a rider that the imposition of redemption fine should not exceed the market price. 5.2 Further, in the case of Maa Tara Enterprises vs. CC, Cochin reported in 2009 (248) ELT 730 (Tri.-Bang.), the Tribunal has observed in para 8 as under: 7. Be that as it may, I find that the issue is now covered in favour of the appellants in the case of laws cited by the ld. Counsel. In those cases also, the issue of import of used photocopiers in violation of the Foreign Trade Policy and misdeclaration of the value is involved. In those cases, I find that the Tribunal has put a benchmark of imposition of redemption fine of 10% and penalty of 5% respectively on the value of the imported goods as arrived by....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ully considered the submissions. We find that the issue is no longer res integra and this very aspect on this very ground as raised in the present cases, has been gone into in great detail by the Apex Court in the case of Tolin Rubbers and in MICO Ltd. The Apex Court has noticed that the transaction value of second-hand machineries cannot be rejected in the absence of any contemporary import of identical goods at identical prices. The issue has been settled in assessees favour by the Apex Court judgment. This has been followed by the Tribunal in the above noted judgments. Therefore, the value adopted by the appellants in terms of the Transaction Value is required to be accepted. The value has been supported by the Certificates also. The learned consultant also raised an issue that the question of imposing higher penalty and RF does not arise as the Tribunal, for not obtaining licences in respect of other machineries, has restricted the RF and penalty to 10% and 5% respectively. In view of the ruling in Rex Printing Press v. CC, Kolkata - 2005 (184) E.L.T. 73 (Tri.-Bang.) and Sooraj Graphics (cited supra), the redemption fine and penalty in these cases is restricted to 10% and 5% re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ia [2012 (275) E.L.T. 175 (Bom.)] has observed that Tribunal is duty bound to follow the binding precedent and further observed that the CESTAT as a judicial body, must realize the importance of doctrine of precedent as in our legal system. Deference to judgments of the Supreme Court is a matter of constitutional principle. Equally, unless Coordinate Benches of the Tribunal have due deference and regard for decisions rendered by the Tribunal, the elements of certainty and consistency in the judicial process which lie at the heart of judicial functioning would be seriously disrupted. In terms of said decision of the Bombay High Court, the precedent decisions of the Coordinate Benches have to be given due respect and are required to be followed unless the same are specifically deviated from by giving suitable reasoning. In those cases also, it is seen that matter needs to be referred to Larger Bench for consideration of the disputed legal issues. Inasmuch as in the present case, all the Coordinate Benches have taken a categorical view of imposition of redemption fine of 10% and penalty of 5% of the value of imported goods, we find no justification to take a different view. It may ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ang.)] = 2008-TIOL-2442-CESTAT-BANG; and accordingly, we hold and order that in all these appeal cases, the redemption fine and the penalty are reduced to 10% and 5% of the assessable value of the goods respectively. 5.8 The learned counsel further submitted that the various decisions cited supra have consistently imposed redemption fine and penalty at 10% and 5% of the value of the goods and in all the decisions, the period of import is almost the same with a difference of few months when compared to the period involved in the present appeals. 6. On the other hand, the learned AR reiterated the findings of the impugned order and submitted that the importers are repeated violators and there should be stringent penalty and the fine, so that they should be discouraged to import in future in violation of the policy restrictions. In reply to this, the learned counsel submitted that in the cited decisions also the importers were repeated offenders even then the Tribunal and High Court have consistently imposed 10% fine and 5% penalty. Learned counsel further submitted that while imposing redemption fine no market enquiry has been conducted to arrive at the margin of profit, which ....