Customs, Excise and Gold Tribunal - Tamil Nadu
Diamond Traders vs Commissioner Of Customs on 6 April, 1999
Equivalent citations: 1999(65)ECC295, 1999(111)ELT438(TRI-CHENNAI)
ORDER S.L. Peeran, Member (J)
1. This appeal arises from Order-in-Appeal No. 112/98, dated 4-12-1998, which confirms imposition of redemption fine at 100%. The appellants had taken a specific plea that in large number of imports of poppy seeds from Pakistan, the redemption fine had been at 85% of the CIF value, in terms of the orders passed by the Commissioner (Appeals) vide his Order-in-Appeal Nos. 29 to 38/96-Cus., dated 8-7-1996 and the same had been confirmed by the Tribunal by rejecting the revenue's appeal in the case of H.M. Enterprises in Final Order Nos. 1600 to 1601/98, dated 25-8-1998. However, the Commissioner (Appeals) did not follow the Tribunal's order on the reasoning that the redemption fine had been reduced to 85% of the CIF value in those cited cases as there was demurrage and as there was no demurrage in the present case, hence the imposition of redemption fine at 100% depending upon the margin of profit earned on the import is justified.
2. The learned Advocate Sri K. Jayaraj points out that in the cited cases also there was no demurrage and the imports had been done during the same period and even in the cited case, the goods had been cleared on payment of duty immediately. He points out that in the cited case, the Commissioner (Appeals) had noted that the Custom House in all those matters had imposed redemption fine at 85% on the profit of CIF value, so there should be no discrimination. He also points out that the revenue appeal was dismissed by the Tribunal by confirming the imposition of 85%. He points out the findings of the Tribunal in the cited case, which are reproduced hereinbelow : -
"I have perused the orders passed by both the authorities. The Order-in-Original passed does not disclose why there should be an increase of payment of redemption fine at 100% when in similar matters he has given 85% especially when the matters were heard together. He ought to have given the reasons as to why such a step is taken. I am reminded of famous judgment in the case of Sharp v. Wakefield reported in 1891 Appeal Case 173 at page 179, wherein it is held that "discretion means when it is said that something is to be done with the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion...according to law and not humour. It is to be not arbitrary, vague and fanciful, but legal and regular."
4. The order passed by the Commissioner (Appeals) reveals that he has applied the correct test. His findings are as follows :-
"At least when" there is a departure from the earlier levels of fine, there should be some findings as to why the fines have been hiked and whether it is on account of the market value being higher during the relevant period." The fine to be levied is on the basis of margin of profit.
5. The ground which has been extracted in the earlier portion of the judgment reveals that the department wants to have maintenance of the disparity. If the department wants to increase the redemption fine, there must be a supporting evidence which is revealed in the grounds of appeal and it is not at all revealed in the Order-in-Original passed by the Addl. Commissioner. No doubt the ground could be taken that show cause notice has been waived. But it does not mean that there could be arbitrary increase in the redemption fine. The basis of increase in the redemption fine could have been disclosed to the person either at the time of personal hearing or it could be revealed, if the personal hearing is not demanded in the Order-in-Original. Hence, I feel the impugned orders are correctly passed and I dismiss the appeals."
The learned advocate points out to the above reasonings of the Tribunal and submits that these reasonings did not found favour with the Commissioner (Appeals), this distinguishing the same, is not supported by any evidence. He points out that the revenue did not produce any evidence. He also submits that the appellants have not earned more profit than the other importers, therefore, the order of Commissioner (Appeals) distinguishing the Tribunal's judgment is not justified. He submits that the Commissioner (Appeals) is bound to have followed the Tribunal's order, as has been held by the Tribunal in the case of Remsons Industries Ltd. v. C.C.E., New Delhi as reported in 1998 (104) E.L.T. 104 (T). He points out that the Tribunal observed after relying on the judgment of Hon'ble Supreme Court in the case of U.O.I, v. Kamlakshi Finance Corporation Ltd. as reported in 1991 (55) E.L.T. 433 (S.C.) that -
"when before a quasi-judicial authority, the law of the land comprising of the Tribunal, High Court and Supreme Court is quoted it is incumbent on the adjudicating authority at the first instance to look into the precedence. The precedence lays down the manner in which the substantive provisions of law is required to be interpreted. The judgments of Higher Forums are precedence which are required to be followed and applied by all lower authorities. The non-following or non-analysing the judgment is a breach of discipline."
The learned Advocate prays for allowing the appeal in terms of the earlier judgment of the Tribunal rendered in the case of CCE v. H.M. Enterprises cited supra.
3. The learned SDR points out that in the present case, there has been a higher margin of profit earned by the party and therefore, the Commissioner was justified in upholding the imposition of redemption fine at 100% of the CIF value. He points out that the Bill of Entry in the present case is dated 19-6-1996, whereas in the case of H.M. Enterprises the date of Bill of Entry is 2-6-1996. He points out that there was fluctuation in the market and hence profit must have been earned more by the party.
4. On a careful consideration of the submissions, I am of the considered opinion that the revenue has not produced any evidence of the fluctuating price between the imports of 2-6-1996 and the imports made in the present case on 19-6-1996. The Commissioner (Appeals) in the case of H.M. Enterprises vide Order-in-Original Nos. 29 to 38/96-Cus., dated 8-7-1996 has clearly noted in his earlier orders and also the Custom House practice in imposing redemption fine at 85% only. From the perusal of the said order, it is seen that there was no payment of demurrage by the concerned parties, therefore, the impugned order of the Commissioner distinguishing the Tribunal's judgment is not on any sound basis. As the Commissioner (Appeals) or the lower authorities have not noted any extra margin of profit or change in the fluctuation of prices, therefore, the Commissioner (Appeals) not following the judgment of the Tribunal cannot be appreciated and it is not in keeping with the judicial discipline or decorum.
5. In the overall facts and circumstances of the case and also the imports also made during the same period and the practice of imposing redemption fine has been only 85% on the CIF value, therefore, in the present case also, respectfully following the judgment of Tribunal as extracted above, the impugned order is modified to the extent that the redemption fine in the present case also to be at 85% of the CIF value.
6. The appeal is disposed of accordingly.