TaxTMI 
TaxTMI 
2004 (3) TMI 257
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....Actual User Condition of the Notification, had come in appeal, whose appeal was dismissed for non-compliance. The Commissioner, in the impugned order, has dealt with 23 parties who had purchased the said machine from the main importer viz. M/s. Bhuvaneshwari Services. He has upheld the allegation against 10 parties, in respect of whom the jurisdictional DRI could locate the machines used, and has seized the same. Out of the 10 machineries, which were seized from the premises of the purchasers, 5 parties have filed the appeals. The name of the party, description, quantity, date of seizure and value of the machines are noted in the tabulated form below. Sl. No. Name of the party Description of goods Qty. Date of seizure Valu....
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....d but are required to be used only by the Actual Users. Investigation revealed that the importer M/s. Bhuvaneshwari Services had sold all the imported machineries. Hence, the Commissioner, after noting all the replies made by the respective parties, upheld the allegation of contravention of the EXIM policy. He has taken a lenient view in so far as the imposition of fine and penalty is concerned. He has given a detailed reasoning to overrule the plea laid down by the parties that there was no mens rea or intention to evade duty. He has noted that the same is not a pre-requisite for imposition of penalty under taxation laws and in this regard has relied on the High Court judgment rendered in the case of Comex Co. v. Collector - 1997 (96) E.L.....
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....ose redemption fine equivalent to the market value in terms of Section 125 of the Customs Act, but has restricted only to impose 10% of the value of the goods. 2. Arguing for the appellants, the learned Counsels Shri S. Raghu and Shri S.R. Madhavamurthy, submitted that the Tribunal in the case of Nirmal Surekha v. CC, Amritsar reported in 2001 (132) E.L.T. 597 (Tri.-Del.) has set aside the redemption fine on the ground that the purchasers of the machinery were also actual users. It is submitted that the appellants were under bona fide belief that as the goods had suffered duty and were cleared through Customs, there was no violation of any law to unable them to purchase the same for actual use. It is stated by the Counsel that as long as....
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.... dispute the correctness of the value adopted by the Department on the seized goods. The Commissioner has already shown leniency in imposing only 10% of the value as redemption fine and Rs. 5,000/- as penalty. It is submitted that no further leniency is required to be shown. It is also pointed out that the plea of bona fide belief by purchaser has not been accepted by the Tribunal in the light of several judgments noted therein including the judgment of the Tribunal rendered in the case of Jain Exports Private Limited v. Collector as reported in 1991 (51) E.L.T. 579. The Tribunal has also noted Supreme Court judgment rendered in the case of Dynamatic Hydraulics Ltd. v. Collector - 1992 (58) E.L.T. 553 (S.C.) wherein it has been observed tha....
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.... Court in the case of Jain Exports v. UOI (supra) that resort to Section 125 of the Customs Act, 1962, to impose fine in lieu of confiscation cannot be so exercised as to give a bonanza or profits for an illegal transaction of import. So long as there is violation of law, Section 111 empowers the proper Officer to confiscate the goods. In terms of Section 125, an option to redeem the goods can be given to the owner or to the person from whose possession the goods were seized. In the present case, the option to redeem has been granted to the appellants from whose possession the goods were seized. Therefore, the appellant's contention that redemption fine cannot be imposed on them but should have been imposed only on the main importer viz. M/....