TaxTMI 
TaxTMI 
2019 (11) TMI 1091
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....rned Counsel argued that no data of contemporaneous imports was shown and the assessable value was increased merely on the basis of Chartered Engineer certificate. The order-in- original also held that goods are liable to absolute confiscation on the ground of violation of following:- (i) Hazardous and Other Waste (Management and Trans-boundary Movement) Rules, 2016 notified by MOEF and; (ii) Electronics and Information Technology Goods (Requirement of Compulsory Registration) Order, 2012 notified by the Ministry of Electronics & Information Technology and' (iii) Para 2.31 of Foreign Trade Policy, 2015-2020 notified by the Director General of Foreign Trade. 3. Learned Counsel pointed out that the Commissioner (Appeals) set-aside the absolute confiscation of the goods and allowed clearances on payment of redemption fine at the rate of 75% of the enhancement value of the goods. Penalty imposed by order-in-original under Section 112(a) of the Customs Act, was reduced to Rs. 2 Lakhs. Learned counsel pointed out that subsequent to the said import, all the other consignments of the appellant are being cleared regularly. He has given the detailed list of goods imported and released....
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.... 21592-21594/2017 dated 08 August 2017. The tribunal order specifically covers all the issues raised and disputed in the present appeal. The said decision reads as follows:- "7. We have heard both sides extensively and perused the appeal records. We note that the dispute in the present case relates to the eligibility of the importer to clear the goods for home consumption as a trader. They are not contesting the confiscability of the imported items and penal consequences thereof. It is admitted that the import is in violation of Import Policy applicable during the material time. The goods are used items and require an import licence for importation. The point which is strongly pleaded before us is that they have not violated the Hazardous Waste Rules, 2016 and they are entitled for redemption of the goods as absolute confiscation or option to re-export only, is not legally sustainable. Penalties under Section 114AA are also contested. We also note that enhanced valuation of used items now imported, is also not contested. 8. On the first point regarding importation being in violation of Import Policy, the same being an admitted fact, does not require further elaboration. On the ....
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....rrelated and now with the Bills of Lading are from various ports of USA etc. As such, the country of origin certificate to be issued by competent authority of that country is not satisfactorily produced in the present consignments. To that extent, there is a violation of the said rules. 11. The next condition is regarding certificate issued by inspection agency approved by DGFT regarding functionaility and residual life of the goods. We note that the original authority held against the appellants regarding violations of these provisions. The present consignments which are imported for which Bills of Entry were filed in October to November 2016 are governed by the 2016 Rules which superseded the 2008 Rules. The learned counsel for the appellant drew our attention to the decision of Technical Review Committee under the 2016 Rules. The decision of the meeting held on 18th and 19th October 2016 recorded that the Extended Producer's Responsibility (EPR) authorisation requirement under 2016 Rules are to be produced on application to the Pollution Control Board and a time line is prescribed for the same. After considering these time lines, the Committee decided that the implementation o....
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....at the importer himself have imported a large number of consignments through Calcutta Port and also other ports including Cochin, and these were in fact adjudicated and allowed for clearance on payment of appropriate redemption fines and penalties. We note that even through the Cochin Port such consignments have been allowed for clearances including for the present appellants. No substantial change in the law subsequently has been discussed in the impugned order to change the earlier decision. We also note that the Hon'ble Madras High Court in City Office Equipments *2016(336) ELT 19 (Mad.)+ examined the scope of such infringement and their implication for the application of Section 125. The High Court observed that even if the goods are liable for confiscation, the same can be released on payment of redemption. The High Court was examining the provisions of FTDR Act read with Section 125(1) of Customs Act, 1962. The Hon'ble Punjab & Haryana High Court in Horizon Ferro Alloys Pvt. Ltd. Vs. UOI [2016(340) ELT 27 (P&H)] examined the scope of Section 125 and observed as below:- "5. ..... ..... .....Section 125 of the Act leaves option to the officer to grant the benefit or not so fa....
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....ion 125 if the goods were not expressly prohibited for import. The Tribunal was dealing with import of gold in violation of the provisions of Policy. 17. In view of the above discussions and analysis, we find that while confiscation of the imported items cannot be faulted with, we note that the appellants are entitled for release of the goods on payment of appropriate redemption fine. The original authority allowed the redemption of goods, though only for re-export, on payment of fine of Rs. 1 crore in respect of M/s. Atul Automation P. Ltd., and on payment of Rs. 30 lakhs in case of M/s. Parag Domestic Appliances Ltd. 18. The total assessable values for the consignments imported by M/s. Atul Automation Ltd. and M/s. Parag Domestic Appliances are about Rs. 5.2 crores and Rs. 1.37 crores respectively. These are enhanced values as per impugned order. The learned counsel for appellants pleaded that the redemption fines of 20% / 22% are harsh. Considering the detention / demurrage charges for one year, as the goods were lying in Port, and also based on past practice in such cases, he pleaded for reduction of fines. 19.1. We note that Hon'ble Kerala High Court in Office Devices [....
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....orrect in any material particular. As discussed elaborately above, we find that there is no situation of any false document submitted by the importer or by the Director of the importer. As such, we find that the application of provisions of Section 114AA is not fully justified by the impugned order and accordingly, we set aside the penalties imposed under Section 114AA. 21. Though the liability for penalty under Section 112(a) is not being contested, the learned counsel pleaded for appropriate reduction of penalty keeping in view the consistent practice of imposing penalty of 5% of assessable value in similar cases. Applying ratio as discussed for redemption fine and also keeping in view the consistent practice followed by the Tribunal and Hon'ble High Courts in such cases, we find that the ends of justice shall be met if the penalties imposed under Section 112(a) are reduced to Rs. 25 lakhs (Rupees twenty five lakhs only) for M/s. Atul Automation Pvt. Ltd. and Rs. 5 lakhs (Rupees five lakhs only) on Shri Ketan Kamdar. The penalties imposed under Section 112(a) on M/s. Parag Domestic Appliances is reduced to Rs. 7 lakhs (Rupees seven lakhs only)." It is seen from the said decisi....
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....er Section 11 of the Customs Act also. Section 18A of the Foreign Trade Act reads that it is in addition to and not in derogation of other laws. Section 125 of the Customs Act vests discretion in the authority to levy fine in lieu of confiscation. The MFDs were not prohibited but restricted items for import. A harmonious reading of the statutory provisions of the Foreign Trade Act and Section 125 of the Customs Act will therefore not detract from the redemption of such restricted goods imported without authorisation upon payment of the market value. There will exist a fundamental distinction between what is prohibited and what is restricted. We therefore, find no error with the conclusion of the Tribunal affirmed by the High Court that the respondent was entitled to redemption of the consignment on payment of the market price at the reassessed value by the Customs authorities with fine under Section 112(a) of the Customs Act, 1962. 10. The Central Government had permitted the import of used MFDs with utility for at least five years keeping in mind that they were not being manufactured in the country. The Chartered Engineer commissioned by the Customs authorities had certified tha....
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....ns finality. 7. The Revenue has sought to rely on the changes made in the policy vide Notification No. 5/2015-2020 dated 07 May 2019. It is seen that the said changes are subsequent to the date of import thus, have no impact on the present proceedings. Consequently, the appeal filed by Revenue seeking confiscation of goods absolutely is dismissed. 8. The appellants have sought relief relying on the decision of Hon'ble Apex Court. The Revenue has sought to rely on the Para 9 and 13 of the Hon'ble Apex Court order to seek imposition of redemption fine equal to the market value of the goods. It is seen that the Hon'ble Apex Court approved the decision of the Tribunal. Perusal of the Para 9 and 13 of the Hon'ble Apex Court decision does not indicate that Hon'ble Apex Court has sought to enhance redemption fine equal to market value of the goods. The Tribunal had directed release of goods at redemption fine of approximately 10% of the assessable value of the goods and imposition of penalty at the rate of 5% of the assessable value of the goods. In that context, the Revenue has inappropriately attempted to rely on and the selectively pick up words, out of context from the decision of H....