KHEMKA IMPEX Vs. CC, COCHIN

JUDGEMENT

(1.) FOR the purpose of hearing this appeal, the appellants are required to pre -deposit penalty of Rs. 2,00,000/ - imposed under section 112(a) of the Customs Act for undervaluing the imported goods in terms of the impugned order. The goods have been confiscated which are valued at Rs. 14,13,477/ -. However, the Commissioner has granted an option to re -export the goods on payment of fine of Rs. 7,00,000/ - only. The learned counsel appearing for the appellants submits that there was no mis -declaration in the matter and that the issue is totally covered in his favour in terms of the judgment in the case of Siemens Ltd. v. CC as reported in, 1999 (113) ELT 776 (SC) :, 1999 (85) ECR 883 (SC) wherein it has been held that option granted for redemption even to re -export the goods within three months and in such cases, where the importer is unable to re -export the goods within three months because of certain action of customs authorities and in further case where such goods have been re -exported then in such circumstances neither redemption fine nor the duty were required to be paid. Learned counsel also relies on the Tribunal judgment rendered in the case of Duphar Interfran Ltd. v. CC as reported in : 1994 (72) ELT 724 and that of Padia Sales Corporation v. CC as reported in, 1992 (61) ELT 90 (T) :, 1993 (46) ECR 674 (T). The learned counsel submits that in the light of these judgments, and in terms of the order for re -export granted by the Commissioner, the redemption fine is not imposable including duty. He submits that the Commissioner has not looked into the ratio of these judgments which are binding in the facts and circumstances of the case and therefore, prays for a clear direction to waive the pre -deposit of penalty and fine and also a direction to Commissioner to allow re -export without depositing these elements.

(2.) LEARNED D.R. opposes the prayer and submits that as these aspects have not been gone into, the question of applying the ratio of these judgments at this prima -facie stage does not arise. He submits that the penalty proceedings are independent and for violation of such contravention, penalty is imposable and the cited judgment does not apply to penalty proceedings. He submits that the penalty imposed is nominal and hence the question of allowing the appeal at this stage does not arise and they are required to pre -deposit the amounts. On a careful consideration of these submissions and the citations referred to by the learned Counsel, we notice that in terms of the ratio of these judgments, it is clear that the authorities cannot impose, redemption fine at the same time ordered for re -export of the goods. The ratio appears to be that when re -export has been ordered then in such circumstances, redemption fine and duty cannot be levied. This aspect of the matter has not been considered by the Commissioner in the impugned order. Therefore, while granting waiver of pre -deposit of the sums, we take up the appeal and set aside the order impugned and remand the matter to the Commissioner to re -consider the matter in the light of the ratio of the judgments cited, after granting an opportunity of hearing to the appellants. The aspect pertaining to the imposition of penalty is to be re -considered along with the matter remanded. The Commissioner shall re -adjudicate the matter in terms of law. The Commissioner shall expeditiously complete the remand proceedings, as the goods are still under Customs charge. Ordered accordingly.