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In the said decision, the Tribunal has relied on a number of decisions of the Tribunal and also followed the decision in the case of Skantrons Pvt. Ltd. v. CC, 2994 (70) ELT 635. We further find that the Hon'ble High Court at Bombay in the case of Phoenix Overseas P. Ltd. v. UOI, 2003 (162) ELT 25 (Bom.) while nothing that when department has allowed re-export of the goods and after the re-export was effected, the importer cannot turn around and contend that since the goods are re-exported, fine and penalty cannot be imposed. We further note that the East Zonal Bench of the Tribunal in the case of Haidery Tins v. CC (Import), Mumbai, 2002 (145) ELT 562 while allowing re-export of goods on payment of fine has set aside the imposition of penalty. Further, the Hon'ble Madras High Court in the case of Sankar Pandi v. UOI, 2002 (141) ELT 635 (Mad.) has held that in case of improper importation redemption fine was not payable and re-export was allowed on payment of penalty. Further, the Tribunal in the case of Guru Ispat Ltd. v. Commissioner, 2003 (151) ELT 384 (Tri-Kolkata) has allowed re-export of goods without payment of redemption fine and penalty when the goods were wrongly shipped by the foreign supplier and there was no mala fide on the part of assessee as they took steps on detection of wrong shipment. The Special Leave Petition filed by the Commissioner in Civil Appeal No. CC 720 of 2003 against the said decision of the Tribunal has been dismissed by the Hon'ble Apex Court as reported in 2003 (157) ELT page A. 87. In the said case, the Commissioner of Customs, Calcutta allowed the appellants therein to re-export the goods on payment of redemption fine of Rs. 5 lakhs. In addition, he held that if the goods are redeemed for home consumption, the appellants would pay the differential duty of Rs. 1 lakh. It would thus be seen that, in that case, the department itself took the view that payment of duty was required to be made only if the goods were redeemed for home consumption. In the present case also immediately on detection of the wrong shipment by the foreign supplier the appellants have established contact with the supplier regarding the mix up and requested for reshipment and the supplier had agreed for the reshipment. We also note that the Hon'ble Supreme Court in their judgment in the case of Union of India v. J.P. Electronics Ltd., 2004 (167) ELT 129 while dealing with a case of imported goods where the exporter had abandoned the goods and prayed for re-export of the imported goods had ruled that the party will be entitled to re-export the goods if the title had not passed to the importer.

In the present case, the records show that the appellants have not made payment to the supplier and the supplier has agreed to take back the goods as the title has not passed to the importer. We find force in the submission of the learned Counsel for the appellants, as could be seen from the various case laws cited above, the department itself has been permitting re-export of imported goods. The co-ordinate Benches of the Tribunal throughout the country have also been taking a view that permission to re-export the goods is not contrary to law. Therefore, relying on the various decisions rendered by the Tribunal, the High Courts, and the Hon'ble Supreme Court as noted above, we hold that the plea of the Revenue that re-export of the imported goods is not permitted by law, cannot be countenanced and we reject the same. We hold that the appellants are entitled to re-export the goods on payment of fine and penalty. While coming to this conclusion, we have also taken note of the long standing practice of the Deptt. in allowing re-export of imported goods throughout the country as also the consistent view being taken by the various Benches of the Tribunal in consonance with the law laid down by the High Courts and the Apex Court in allowing re-export. In a recent decision in the case of Ajanta Watch Ltd. v. CCE, Ahmedabad, 2004 (171) ELT 350 (Tri-Mumbai) where wrong shipment was sent by the foreign supplier, re-export was allowed by the Commissioner on payment of redemption fine of Rs. 6 lakhs and penalty of Rs. 2.5 Lakhs.