TaxTMI 
TaxTMI 
2009 (6) TMI 66
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....ented beyond the time cannot be entertained and that Section 50 has no application and placed reliance on the decision of the Apex Court in Commissioner of Customs & Central Excise v. Hongo India (P) Ltd. [2009 (236) E.L.T. 417]. We have perused the judgment cited. The Apex Court, after considering the provisions contained under Section 35H of the Central Excise Act providing for a reference to the High Court, which provides a period of limitation but in the absence of any provision for filing any reference application beyond the said time and in the absence of any express provision making Limitation Act applicable, held that Section 5 of the Limitation Act stood excluded. 3. Though in the course of its discussion reference was also made to the appeal provision, actually, the question as to whether Section 5 did apply to an appeal preferred to the High Court under Section 130 of the Customs Act did not arise for consideration. Further, as rightly pointed out by the learned counsel appearing on behalf of the appellant, Section 130(9) inter alia provides "that except as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 relating to appeals to this Hi....
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....on fine and penalty imposed. It was urged that the redemption fine and penalty imposed are exorbitant when the actual price of the imported goods is much less than the value fixed by the Revenue on the basis of the Chartered Engineer's certificate, that the enhancement of the value itself has escalated the duty and there is escalation in redemption fine and penalty imposed on the appellants. It was also contended that the profit margin of 20% to 30% as found by the Commissioner was factually incorrect. Thus, they prayed that the redemption fine and the penalty be reduced to 10% and 5% respectively of the value of the imported goods. The Tribunal, after hearing the parties and after considering the precedence on the points raised, held that the value declared by the respondent has since been enhanced by the Revenue on the basis of the Chartered Engineer's certificate and in the absence of any evidence brought out by the Revenue to show that they had paid more than what they had declared to the Customs, redemption fine of 10% and penalty of 4% would be appropriate. It was also held that in the absence of any factual difference, the Bench cannot deviate from the ratio of its own decis....
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.... It is also contended that when discretion is vested on an Authority, in the absence of any guideline inbuilt in the provision or rule, it has to be exercised in an objective manner on well-founded principles is beyond any dispute. But in the factual situation, the Authority has applied its mind and exercised its discretion which does not call for interference. It is also his case that the respondent is not a repeated offender as contended by the Revenue. According to him, the policy change was brought out by notification only in 2005, that for the earlier import made though he was imposed with a penalty and confiscation was ordered, ultimately the matter was taken to the Apex Court in appeal and finally it was held that the policy change has to be brought out not by circular but by notification and as such the orders passed by the Authorities were quashed. Hence in no way can it be said that he is a repeated offender. He has a further case that in the absence of any materials placed by the Revenue to draw any distinction between the case decided earlier the tribunal was perfectly justified in following the precedence and imposing the redemption fine at the same rate. It is pointed....
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....ption fine to 5% and 15% respectively of the value of the goods. It was held thus: "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 exceed" indicates that the authorities under Act are empowered to impose redemption fine less than the market price of goods. Likewise under Section 112(a), the maximum penalty that could be levied is only prescribed, and there is no statutory prescription that the penalty should not be reduced by appellate authority." That was also a case where the Tribunal had in fact followed the earlier order of the Tribunal wherein the quantum of redemption 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....