COMMISSIONER OF CUSTOMS, COCHIN Vs. ARIHANT ENTERPRISES

JUDGEMENT

(1.) APPEALS as per Annexure -A to this order have been filed by the Department and are directed against different orders of the Commissioner of Customs, Cochin by which imported second hand goods stand confiscated but allowed to be redeemed on payment of fines and penalties imposed on the respondent. The department is in appeal aggrieved on the quantum of redemption fines and penalties and the prayers in all these appeals are for remitting the matter back to the Commissioner for fresh consideration on the aspect of redemption fine and penalty.

(2.) NONE appears for the respondents.

(3.) 1 Heard the learned DR extensively on behalf of the appellant -department. Learned DR referring to two charts [one relating to the 6 orders passed by the Commissioner and other relating to one order passed by the Commissioner (Appeals)] submits that the facts in all these cases are similar. The respondents have imported items like old and used analogous and digital copiers of Canon brand, old and used computer systems, monitors, old and used MFP, copier machines, old and used monitors and parts like RAM and CPU. Import of such old and used items required licence as per the Exim Policy and none of them had such requisite licences. The imported goods were subject to examination by approved Chartered Engineers who gave opinion on the nature of goods, residuary life of the machines and on the value of the goods. In all these cases, the respondents have accepted the enhanced values for the purpose of payment of customs duty. 3.2 The Commissioner in 6 cases has held that the imported old and second hand goods were liable for confiscation and accordingly confiscated them. Learned DR, referring to the orders of Commissioner, submits that the redemption fine and penalty imposed is only in the range of 13 to 15% on the re -determined value. In one case, the original authority passed similar order on similar facts and imposed redemption fine and penalty. Commissioner (Appeals) in this one case, reduced the redemption fine and penalty. Commissioner (Appeals) in this case, has reduced the redemption fine to 10% of the re -determined value and penalty to the level of 5% of the re -determined value. 3.3 Relying on the decision of the Honble High Court in the case of Jain Exports Pvt. Ltd., New Delhi and Anr v. UOI and Others reported as 1987 (29) E.L.T. 753 (Del.) particularly paragraph 71, she submits that quantum of fine in lieu of confiscation imposed should not be such as to give a bonanza of profits by an illegal transaction of import. She further relies on the decision of the Honble Supreme Court in the case of Jain Exports Pvt. Ltd. v. UOI reported as 1993 (66) E.L.T. 537 (S.C.) particularly paragraph 6 and submits that fixation of quantum of redemption fine should depend upon the totality of facts and circumstances of the case. 3.4 She also submits that the Board, vide Circular No. 36/2000, dated 8 -5 -2000 and Circular No. 9/2001, dated 22 -2 -2001 has prescribed guidelines to the effect that the imposition of fine and penalty for violation of Exim Policy should be such that it not only wipes of the margin of profit but also acts as a deterrent against repeated imports. 3.5 In the light of the above, referring to the prayer in the appeals relating to orders passed by the Commissioner, she seeks remand of the matters to the Commissioner for fresh consideration of the quantum of redemption fine and penalty. In respect of appeal arising out of Commissioner (Appeals) order, she prays that the order of the Commissioner (Appeals) should be set aside and order of the original authority should be restored.