COMMISSIONER OF CUSTOMS (PREVENTIVE) Vs. GIANS ENTERPRISES

JUDGEMENT

(1.) THE revenue has approached this Court by invoking the provisions of Section 130 of the Customs Act, 1962 (for brevity, 'the Act') and has challenged order dated 17.12.2007, passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for brevity, 'the Tribunal'). The Tribunal has found that there was no ground for enhancing the fine and penalty for the reason that redemption fine is always computed on the basis of margin of profit which is likely to be earned by the assessee, where the goods are imported and are held to be liable to be confiscated. The Tribunal also found that no inquiry ascertaining the market value was held and no computation for arriving at the margin of profit was possible.

(2.) THE revenue's prayer for enhancing quantum of fine and penalty was accordingly dismissed and the order passed by the Commissioner (Appeal) i.e. the Appellate Authority, dated 27.4.2007 (A -2) was upheld. The only contention raised by Mr. Sanjeev Kaushik, learned Counsel for the revenue is that in terms of Section 125(1) of the Act, fine in lieu of confiscation should have been imposed on the assessee. However, we are unable to accept the aforesaid submission because Section 125 of the Act is not mandatory in character. Moreover, the proviso to the section clearly envisage that the fine is not to exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon.