TaxTMI 
TaxTMI 
2026 (7) TMI 1680
X X X X Extracts X X X X
X X X X Extracts X X X X
....s. The changes in tax structure require the respondent to re-price the goods and alter the Maximum Retail Price (MRP) of these iPhones. Thus, to carry out such activities, the Respondent requested for permission to re-export the goods and for affixing the MRP labels. The Appellant herein considered the request and as per the letter dated 31.03.2018 informed that the request for re-export is allowed. However, since the goods are liable for confiscation, directed the Respondent to redeem the goods on payment of redemption fine of Rs.70 lakhs under Section 125 of the Customs Act, 1962 and also imposed penalty of Rs. 30 lakhs. Aggrieved by said order, an appeal was filed before the Commissioner (Appeals) and Commissioner (Appeals) set aside the order of confiscation and imposition fine and penalty and allowed re-export without redemption fine and penalty. In the meantime, the Respondent-importer paid redemption fine and penalty under protest for re-export of the impugned goods. The Order of the Commissioner (Appeals) was reviewed by the Committee of Commissioners on 29.01.2019 and as directed, appeal is filed before this Tribunal. 3. When the appeal came up for hearing, Learned Auth....
X X X X Extracts X X X X
X X X X Extracts X X X X
....imposable for improper importation even when re-export of goods is allowed after confiscation, following the rationale laid down by the Apex Court in the case of Collector of Customs, Bombay Vs. M/s. Elephanta Oil and Industries Ltd., Bombay in judgment dated 31.01.2003-[2003 (152) E.L.T. 257 (S.C.)]. In the instant case, the violation of the prohibition is clearly established and the ground that the importer himself has sought for re-export of the goods does not absolve him of the responsibility of possession of valid IMEI certificate before importation. As far as the ground that the matter was decided without issue of any Show Cause Notice or Personal Hearing, the importer vide letter dated 13.03.2018 had stated that they did not want any Show Cause Notice / Personal Hearing in the matter and requested to take a lenient view of the matter. As regards reliance on the case law of Guru Ispat Ltd. Vs. Commissioner of Customs (Ports) Calcutta [2003 (151) ELT 384 (Kol)], Learned AR submits that it is clearly distinguishable as the issue involved therein was with reference to wrong goods and the wrong goods have been shipped because of the mistake of the supplier, which is not the case ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nal (supra) also it is noted that the Tribunal did not set aside the redemption fine, but only modified its terms, making it a fine in lieu of confiscation simplicitor, which is in consonance with the object of Section 125 as seen above. As for the Tribunal decision in the case of Allen Bradley India (supra) the facts, as pointed out by Id. SDR, are different from the present case. There the Collector has given a clear finding that wrong goods had been shipped because of suppliers mistake and the importer had disclosed the fact to the department even before the examination of the goods. The Tribunal therefore, held that the goods need not have been subjected to confiscation and to levy of fine in lieu of confiscation. So also in the case of Tribunal decision in Skantrons (supra), the Tribunal was of the view that the goods need not have been confiscated at all under Section 111(d) when the importer offered to produce other valid licence for the goods in the place of licence originally presented for the clearance of the goods which was found to have forged endorsement. The Tribunal observed that simultaneous imposition of two conditions namely imposition of fine in lieu of confiscat....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... made by the owner of the goods is outside the purview of the adjudication proceedings, as mentioned above. We, therefore, answer the questions referred in the affirmative and hold that it is open to the adjudicating authority to impose redemption fine as well as penalty even when permission is granted for re-exporting the goods. The reference is answered as above. 4.2 Thus, in both the above case laws, it has been clearly held that permission for re-export does not negate the taint of violation of law and that Redemption Fine and Penalty are imposable for violation of the rules even when permission to re-export is considered. 5. Learned AR also draws our attention to the decision of this Tribunal in the matter of M/s. Saint Global Crystals Dictators Eye India Ltd Vs. CC, Bangalore (2018 (364) E.L.T 1055 (Tri. Bang) wherein it is held that such letter issued by Deputy Commissioner cannot be considered as valid order to challenge the same before the Commissioner (Appeals) and it is only an administrative order. Hence the order of the Appellate authority is liable to be set aside." 6. Learned Chartered Accountant (CA) appearing for the Respondent -Importer submits that the a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er's letter waiving Show Cause Notice /Personal Hearing dated 13.03.2018 and submits that Respondent requested for waiver of Show Cause Notice /Personal Hearing only in relation to re-export proceedings, not to waive an SCN for penalty or redemption fine as the Respondent was not aware of any such proceedings. Principles of natural justice violated, Section 124 of the Customs Act, 1962 mandates a three-stage process which cannot be by-passed, which is as follows: (a) Notice of proposal (b) Opportunity for written representation (c) Opportunity of personal hearing 9.1 Consent cannot confer jurisdiction, i.e. even if SCN is waived, the authority is obliged to follow the law and issue SCN. Learned CA relied on the following decisions:- (i) Section 124 of Customs Act, 1962 (ii) Onkarmal Nathmal Trust [1975 (5) TMI 86-SUPREME COURT) (iii) Kartik Sahdev Vs. Commissioner of Customs [(2025) 29 Centax 253 (Del.)] (iv) Naina Chopra Vs. Comm. of Cus., ICD, New Delhi [2018 (359) E.L.Τ. 235 (Tri. -Chan.)] 10. Learned CA submits that Joint Commissioner's order which forms the basis of the proceedings in dispute were not pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ision of Joint Commissioner of Customs is totally specious and violates all cannons of jurisprudence. The imposition of redemption fine under Section 125 and penalty under Section 112 of the Customs Act, 1962 without any issuance of Show Cause Notice; personal hearing seriously impedes right of defense of the appellant. The decision of Department is bereft of invocation of nature of contravention which leads to confiscation of goods under Section 111(d) and imposition of penalty under Section 112 of the Customs Act, 1962. Also the quasi-judicial authority/ the proper officer himself not signed the decision but let it communicate through his subordinate which entails huge plenary consequences is clearly ultra vires. 10. On merit also, I find that impugned goods which remained uncleared were asked for re-export on ground of GST being implemented on 1st July 2017 vide appellant letter 07.07.2017 primarily for refixing the price. The factum of any contravention or malafide intent if any of appellant is not established. This is also not a case of improper import as appellant himself requested for re-export. The goods purported to be confiscated under Section 111(d) without any ....