Commissioner of Customs, Bangalore v. Shiva Auto Works
2011-08-12
N.KUMAR, RAVI MALIMATH
body2011
DigiLaw.ai
JUDGMENT N. Kumar , J.—These appeals are filed by the Revenue challenging the order passed by the Tribunal which has reduced redemption fine to 50% of what was imposed by the Commissioner of Customs. In coming to the conclusion that a case for redemption is made out. The Tribunal relied on several judgment of the Mumbai Bench of the Tribunal. The relevant portion reads as under: The learned counsel relies on the similar judgment passed by the Mumbai Bench in the case of Sagar Auto Works v. C.C.E, Goa - 2004 (163) E.L.T. 442 (Tri.-Mumbai) wherein the Tribunal has reduced the redemption fine to 45% of CIF value as determined and penalty at 5% of CIF value as determined, to be just and proper in the facts of the case. Similar order has been passed by Mumbai Bench in the case of Sarawati Repowering Works v. C.C., Mumbai by Final Order No. CII/3253/WZB/2003, dated 10-2-2003. He also referred to M/s. Mehta Enterprises v. C.C., Goa by Final Order No. CII/148/WZB/2004 dated 12-1-2004. In all these cases, the Mumbai Bench has fixed the fine at 45% of CIF value as determined and penalty at 5% of CIF value as determined. He submits that appellants would be done justice, if such a similar order is passed in their favour keeping in view the above cited judgments. In fact, as is clear from para 3 of the impugned order, the learned departmental representative fairly conceded that position with cited cases where imports were all of same items during the same time and place. It is in that context as the fine and penalty of similar imports have been reduced to 45% of CIF value as determined the Tribunal proceeded to grant the said relief to the assessee. Aggrieved by the said order, present appeals is filed. The learned counsel for the revenue contends that no such discretion is vested with the Tribunal to interfere with the redemption fine.
Aggrieved by the said order, present appeals is filed. The learned counsel for the revenue contends that no such discretion is vested with the Tribunal to interfere with the redemption fine. In support of his contention, he relied on the judgment of the Supreme Court in the case of Jain Exports Pvt. Ltd. v. Union of India [ 1993 (66) E.L.T. 537 (S.C)], in particular para 9, which reads as follows : Before we address ourselves to the question whether the facts and circumstances of this case warrant a total or partial waiver of the redemption fine it is necessary to bear in mind the fact that the fixation of the quantum of the redemption is in exercise of the discretionary jurisdiction of the authorities under the Customs Act and ordinarily this Court, while exercising jurisdiction either under Article 32 or under Article 136 of the Constitution, would be slow to interfere with such an order unless it is shown to be thoroughly arbitrary or whimsical resulting in gross miscarriage of justice. As pointed out above the mere fact that the action of the importers was bona fide will not per se entitle them to a waiver of the entire redemption fine but the Court would have to bear in mind the totality of the circumstances and the benefit if any, derived by the importers from the illegal import. It is this background that we must examine the question whether the Collector's order imposing the redemption fine and the Tribunal's refusal to interfere therewith require interference at our hands in the present proceedings. 2. A careful reading of the aforesaid judgment makes it clear that the High Court and the Supreme Court should not interfere with the orders passed by the Tribunal and the Commissioner for Excise without any justification and not that the Tribunal has not jurisdiction to interfere with the orders passed by the Commissioner of Excise. Following the aforesaid judgment, we are satisfied that the order passed by the Tribunal is just and equitable. We do not see any good ground to entertain the appeals. Accordingly the appeals are dismissed.