M. BALASUBRAMANIAM Vs. C.C. CHENNAI

JUDGEMENT

(1.) This appeal arises from order in appeal No. C.Cus.809/99 dated 22.12.99 passed by which Commissioner of Customs (Appeals), Chennai, by which she had modified the order in original dated 2.9.99 passed by the Additional Commissioner, Chennai by reducing the redemption fine from Rs 4 lakhs to Rs 1 lakh and also by setting aside the penalty of Rs 40,000/ - imposed by the Additional Commissioner.Appellant is not satisfied with the relief given by the Commissioner(Appeals)and he wants the Redemption fine to be set aside on the plea that although there was violation of the Import Policy issued in terms Public Notice No.3(PN)/1997 2000 dated 1.3.99 inasmuch as the car which the appellant had imported was without a licence, but yet as he had been granted permission to re -export and therefore, the question of imposing redemption fine does not arise in the matter.

(2.) Shri MS Kumaraswamy, learned Consultant for the appellant submits that the appellant had been a non resident for more than 26 years and had decided to return to India permanently and the appellant had already set up poultry farm and there was clear intention on the part of the appellant permanently settle in India. In terms of the ITC Policy, appellant can import without licence passenger car with engine capacity not exceeding 4 cylinders and not exceeding 1600 cc whether the car is old or new and that the car should be in the use of the importer for more than a year prior to his/return to India.He submits that the imported car exceeded 1600 cc. But however, the appellant had used the car for more than a year prior to his return to India and there was partial satisfaction of the ITC Policy.Therefore the Commissioner ought not have imposed fine in the matter as there was no intention sell the car to make profit in India.There was bona fide on the part of the appellant in importing the car in terms of the ITC Policy.

(3.) Shri S.Arumugham, learned DR, on the other hand points out that there is clear violation of the ITC Policy as the Car exceeded 1600 cc which is not permitted to be imported into the Country.He pointed out from order that the appellant was not coming to India permanently and clear finding is recorded by the authorities on this aspect of the matter.Therefore as the res was clear violation of the Customs Act and as also there was misdeclaration of the Customs Act Section 111(d) read with Foreign Trade (Development Regulation)Act, 1962, the order should be sustained. He has pointed out that the Commissioner has already given relief in reducing the redemption fine from Rs 4 lakhs to Rs 1 lakh and set aside the penalty and there is no case for granting any further relief in the matter.he pointed out that the Hon'ble Supreme Court in the case of CC vs. Shala Kapoor, reported in 1999 (113) ELT 757 discussed the issue pertaining to import of second hand machinery in terms of the Import Policy.The Tribunal had granted relief in view of the partial compliance of the Notification. However, the Hon'ble Supreme Court has over ruled the judgement of the Tribunal by holding that the Collector had rightly concluded that the import being without any licence, the same is liable for confiscation and the confiscation order of the Collector and imposition of penalty was restored by the Supreme Court. He submits that this judgment has a clear bearing in the present case as the appellant has imported the car without a licence and the car is having engine capacity of more than 1600 cc.