Customs, Excise and Gold Tribunal - Tamil Nadu
Alukkas Exporters vs Commissioner Of Customs, Coimbatore on 23 November, 2001
Equivalent citations: 2002(145)ELT227(TRI-CHENNAI)
JUDGMENT
S.L. Peeran
1. The short question that arises in this appeal arising from Order-in-Original No. 1/2001 dated 27.6.2001 is as to whether the redemption fine can be levied while the Commissioner has accepted the plea for re-export of the imported items namely plain gold jewellery weighing 7532.260 gms valued at Rs. 28,15,680/- and penalty of Rs. 25 lakhs can be imposed under Section 112 of the Customs Act.
2. Arguing for the appellants, Ld. Counsel Shri K.R. Natarajan contended that the appellant importer had been importing gold jewellery against the Special Import Licence during the Financial year 1999-2000 clearing the same at the concessional rates of duty in terms of the notification No. 117/94 as amended by notification No. 2/99-Cus. However, on 1.4.2001, the Import Export Policy was amended and the condition for acquiring a specific licence for importing the gold jewellery was incorporated. A specific ITC heading was carved out under the heading 711319.01 restricting the item that could be imported only under SIL issued by the DGFT w.e.f. 1.4.2001. He contends that appellants wee under the bonafide belief that they could continue to import under the notification No. 20/2001-Cus. and had imported the gold jewellery. However, the same was confiscated and has been allowed to be re-exported on payment of fine and a huge penalty of Rs. 25 lakhs has been imposed. it is his contention that the law laid down presently is that when permission is granted to reexport, then in such circumstances, redemption fine under Section 125 cannot be imposed. To support this plea, he has drawn our attention to the following judgements:-
1. 1992 (61) ELT 90 (T) - PADIA SALES CORPORATION v. CC
2. 1994 (70) ELT 635 (T) - SKANTRON (P) LTD v. CC NEW DELHI.
3. 1997 (92) ELT 367 (T) - HCL HEWELETT PACKARD LTD. v. CCE Delhi.
4. 2000 (121) ELT 426 (T) - SHUBH GEMS v. CCE JAIPUR.
3. He also referred to the judgement rendered in SHUBH GEMS (supra) wherein the nominal penalty of Rs. 1000/- alone was imposed. As against the importation of 3390.79 cts of emeralds and redemption fine was set aside in the light of other judgements already noted. He contends that in the present case no penalty was imposable in view of bonafide and genuine plea held by the appellants and the policy itself had permitted them to import and they had received it on 5.4.01 being unaware that the Import Export Policy had in the meanwhile been revised w.e.f. 1.4.2001. He drew reference to the Apex Court judgement rendered in AKBAR BADRUDDIN JIWANI v. CC-1990 (47) ELT 161 (SC) wherein the Apex Court has laid down the principle that there has to be mensrea for imposing penalty. In these circumstances, the penalty was set aside after it was shown to the Apex court that appellants bore bonafide belief for importing the goods. He submits that the principle laid down by the Apex Court in this judgement applies to the facts of this case also. he also referred to the following judgements wherein it has been held that penalty is not imposable:-
(1) RAJA IMPORTS AND EXPORTS v. CCE Bombay - 2000 (119) ELT 346 (T) (2) ANOOP KUMAR v. CCE (PREV.) CALCUTTA - 2000 (124) ELT 648 (T) (3) LISHA ENGINEERING INDUSTRIES v. CCE Bhopal - 2000 (118) ELT 683 (T) (4) MAZDA CAMERA CENTRE v. CC Mumbai - 2000 (117) ELT 773 (T). (5) UNION OF INDIA v. BABUBHAI RAMJIBHAI PATEL - 1983 ELT 2214 (GUJARAT H.C.)
4. Therefore, He sought for setting aside the order on the basis of these rulings.
5. Arguing for the Revenue, Ld. SDR justifies the order on the basis of reasoning given by the Commissioner in the impugned order.
6. On a careful consideration of the submissions, we notice the Import Export Policy was amended w.e.f. 1.4.2001 by which it was laid down that for importing gold jewellery (unset), it was made classifiable under ITC Heading 711319.01 and was made a restricted item and that it could be imported only on specific import licence for re-export. However, he has held that redemption fine is required to be imposed for violation of the policy and confirmed the same. In the light of the judgements which have been noted supra the redemption fine is not imposable if the party has been granted the option to re-export the goods. This plea is required to be accepted in the light of the judgements already shown to us. However, it is for the Commissioner to accept the plea of re-export while granting the request made by the appellants. On such re-export being done appellants cannot be insisted for paying the redemption fine as the same is not imposable. Therefore the order is modified to the extent that appellants are entitled to reexport the same without any fine being confirmed. As regards the plea that no penalty is required to be imposed in this case in the light of ratio of the judgement of the Apex Court, High Courts and Tribunal, we are of the considered opinion that the Commissioner has not at all applied his mind on this aspect of the matter. The adjudicating authority is duty bound to consider the plea of bonafide belief and see as to whether the plea can be accepted for not imposing penalty. further argument raised was that even in case, if the Commissioner come to the conclusion that penalty is imposable, then even in that circumstances, it has to be marginal and nominal one as held in the case of SHUBH GEMS (supra) wherein penalty of Rs. 1000/- has been imposed. The Tribunal has directed the Commissioner to look into the point and arrive at the conclusion as to whether penalty is imposable or not and as to what the quantum should be imposed in the case? We are remanding the matter to the Commissioner to readjudicate all the aspects of the matter. In case, if appellants are exercising the option to reexport the goods, then the fine is deemed to have been set aside. However, in case, if they are exercising the option to clear the goods on payment of fine, the Ld. Commissioner is duty bound to exercise his discretionary power in the matter again in case if they so desire to clear the goods on payment of duty for arriving at the appropriate fine in the light of submission of bonafide belief. Likewise, the Commissioner shall readjudicate the matter after granting an opportunity of hearing with regard to penalty portion as already discussed supra in the light of judgements cited. The impugned order is set aside and matter remanded for de novo consideration. Appeal is allowed by way of remand.
(Dictated and pronounced in open Court 23.11.01)