TaxTMI 
TaxTMI 
TaxTMI 
2022 (8) TMI 722
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.... Act, 1962. ii) I confiscate the 1843 Nos. of Used tyres valued at Rs.15,78,935/- (CF) imported under the Bill of Entry No.482275 dt.23.03.2010 under Section 111(d) & 111(m) of the Customs Act, 1962 read with Section 3(3) of The Foreign Trade (Development and Regulation) Act, 1992. However, I give an option to the importer to redeem the same on payment of a Fine of Rs.3,00,000/- (Rupees three lakhs only) under Section 125 of Customs Act and on payment of appropriate duty on the re-determined value. iii) I impose a penalty of Rs.2,00,000/- (Rupees two lakhs only) on the importer under Section 112 (a) of the Customs Act, 1962. 2. The matter has been posted for hearing today. None appeared for the respondent. We have heard Shri R. Rajaraman, Asst. Commissioner, Authorized Representative for the Revenue. 3. We also note that in this case appeal has been fled in the year 2011 and Tribunal vide its Stay Order No.641/2011 dated 27.06.2011 held as follows : "The application of the Revenue for stay of operation of the order of the Commissioner (Appeals), who has reduced the quantum of fine in lieu of confiscation of used tyres and reduced the penalty, is dismissed, as the question a....
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....ared value per tyre is less than USD 175. In the instant case, the highest declared value per tyre is USD 26 only and as such the present import requires a licence from DGFT, which the appellants do not posses. The value declared was not accepted. The value has determined under Rule 9 (Residual method) of the CVR, 2007 read with Section 14 (1) of Customs Act., 1962. The value estimated by the Chartered Engineer was adopted for assessment which was accepted by the appellants. In as much as the appellants did not possess any valid licence and misdeclared the value the confiscation of the goods under Section 111 (d) & 111 (m) of the Customs Act, 1962 read with Section 3(3) of Foreign Trade (Development and Regulation) Act, 1992, imposition of redemption fine under Sec.125 of Customs Act, 1962 and imposition of penalty under Sec.112 (a) of the Customs Act, 1962 by the lower authority is sustainable. However following the ratio of Hon'ble South Zonal Bench, Bangalore in the case of H.T Company Vs. Commissioner of Customs, Hyderabad reported in 2007 (208) ELT 507 Tribunal, Bangalore and in the case of Selection Enterprises Vs, C.C.Hyderabad reported in 2008(232) ELT 755 Tribunal, Bangalo....
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....determine the quantum and fine and penalty as per the gravity of the offence involved. Even in the decision relied upon by the revenue to support their case Hon'ble High Court has held as follows: "4. Being aggrieved from the said order this appeal has been preferred by the Department and the appeal was admitted by this Court on the following questions of law: "1. Whether, the sandal wood which falls under the category of prohibited goods covered under Negative List, Part = I, Sl. No. 9 of Chapter-XVI, of EXIM Policy, 1991-1997 should not have been released to exporter for exportation? 2. Whether the seized sandal wood were liable for absolute confiscation under Section 13(D)(I) and (e) of the customs Act, 1962? 3. Whether, the CESTAT should have allowed release of sandal wood, export of which is prohibited, to the exporter upon redemption fine of Rs.8 lakhs against a value of Rs.64 lakhs in the year 1994?" ........... 9. In the facts and circumstances of the case the Commissioner of Customs (Preventive), having regard to the fact that the goods attempted to be exported were Sandal Wood and not finished products and thereby it attracts, according to Mr. Bose, under '....
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....ore, in our considered opinion that the Tribunal has the right to pass such order by giving an option to pay fine in lieu of confiscation of goods as has been directed to be done by them. 15. So far as the point no.2 is concerned, the discretion as exercised by the Tribunal for awarding the penalty in favour of the respondent firm as well as for the partners, we feel such discretion which has been specifically dealt with by the authority the Tribunal should not have any authority to sit on appeal on the said question and it is not within the domain of the Tribunal to come to such conclusion to reduce the amount as has been sought to the done in the facts and circumstances of the case without properly testing the question that whether the discretion has been applied by the said authorities properly or not. Hence, in our considered opinion that part of the order so passed by the Tribunal cannot be accepted by us and the said poartion of the order of the Tribunal has to be set aside. 16. We only impose penalty as directed to be paid by the firm as well as by the partner has been adjudicated upon by the said authority has to be paid and accordingly that part of the order of the Lea....