VISHAL PRINTING PRESS Vs. CC, AMRITSAR

JUDGEMENT

(1.) THE brief facts of the case are as follows : -

(2.) THE appellants, engaged in the activity of printing, imported a consignment of second hand offset printing machinery and claimed customs clearance of the goods by filing Bill of Entry No. 92/99 dated 24.6.99 through their CHA. Import of second hand capital goods was permitted up to 31.3.99 subject to actual user condition under the provisions of para 5.4 of the EXIM Policy, 1997 -2002. Import of such goods, with effect from 1.4.99, was permissible only under specific import licence. Neither any valid import licence was produced by the importer, nor could they produce any evidence to show that the shipment had taken place before 1.4.99. Therefore, the Joint Commissioner of Customs ordered confiscation of the goods under Section 111 (d) of the Customs Act with option to the party to redeem the goods on payment of a fine of Rs.2,10,000/ - as well as payment of customs duty leviable on the goods. The Joint Commissioner also stipulated that, on redemption of the goods, the importer shall not part with then for five years or till they were scrapped, whichever was later. He also imposed a penalty of Rs.1,05,000/ - on the importer under Section 112 (a) of the Customs Act. In the appeal filed by the aggrieved party against the order of the adjudicating authority, the Commissioner (Appeals) upheld the order of the lower authority on merits but reduced the quanta of redemption fine and penalty to Rs.1,00,000/ - and Rs.25,000/ - respectively. The present appeal by the importer is against the order of the Commissioner (Appeals).

(3.) I have examined the records and have heard both sides. Ld. Advocate Sh. Akshay Anand for the appellants submits that the sole challenge in this appeal is against the quantum of the redemption fine and that of the penalty imposed respectively under Section 125 and Section 112 (a) of the Act. He submits that the proviso to Section 125 (1) of the Customs Act prescribes the maximum limit of redemption fine imposable in lieu of confiscation of imported goods. According to the proviso, the fine was not to exceed the market price of the confiscated goods less the duty chargeable thereon. Ld. Advocate's submission, in this connection, is that the goods in question cannot be considered to be marketable at all inasmuch as the adjudicating authority itself placed an embargo on parting with the goods for five years or till the goods were scrapped, whichever was later. According to ld. Counsel, the goods were not capable of being marketed for least a period of five years and, therefore, there was no question of any 'market price' existing in respect of the goods. In this view of the matter, ld. Advocate argues, the proviso might not be applicable to the appellant's case. Ld. JDR has opposed this argument by submitting that the proviso does not pre -suppose any actual sale of the goods and that it is enough, under Section 125, for the Customs authority to consider the price which the goods could fetch in the Indian market at the material time. I am in full agreement with the submissions of ld. JDR. Therefore, there is no question of the appellants' case falling outside the coverage of the proviso. Coming to the quantum of redemption fine of Rs.1,00,000/ - ld. Advocate pleads that it is excessive, having regard to the total value of the goods as assessee even by the Customs authority. On the other hand, ld. JDR has rated the redemption fine as reasonable. Similar arguments have been put forth by either sides in respect of penalty as well.