2004 (97) ECC 65 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

South Zonal Bench -- Bangalore

Dr. S.L. Peeran, Member (J) and Shri T.K. Jayaraman, Member (T)

Commissioner of Customs, Cochin

Versus

Afzal Agency

Appeal No. C/148/2004

[Arising out of Order-in-Appeal No. 180/2003-Cus dated 27.11.2003 passed by the Commissioner of Customs, Bangalore]

Final Order No. 1492/2004, dt. 20.9.2004, Certified on 27.9.2004

Redemption fine (Customs)

Re-export -- When there is a violation of law, then the power to impose redemption fine as well as penalty is sustainable even if the authority has granted permission for re-exporting the goods -- There is clear violation of law inasmuch as that the imported goods had not satisfied the food standards in terms of the Prevention of Food Adulteration Act. Test results clearly shown that imported dates were infected with insects and that the same where liable for confiscation. The original authority had imposed only 10% of Redemption Fine, which cannot be said to be on higher side.

[Paras 3 & 4]

Revenue's Appeal allowed

PRESENT :

Shri P.M. Saleem, SDR for the appellant.

Shri G. Subramanian, Advocate for the respondent.

Case Cited :

Hemant Bhai R. Patel v. CC, Ahmd., 2003 (87) ECC 823 (Tri.LB)................... [Paras 3 & 4]

Per : Dr. S.L. Peeran

The Revenue is aggrieved with the Order-in-Appeal No. 180/2003-Cus dated 27.11.2003 by which the Commissioner (Appeals) has modified the Order-in-Original by setting aside the imposition of redemption fine. The Revenue contends that the appellants had imported 53.79 MT of Dates of Iranian origin valued at Rs. 3,38,661. On an analysis by the Port Health Officers, it was found that the imported dated did not conform with the existing food standards and had violated the provisions of Prevention of Food Adulteration Act, 1954. The dates were infected with insects, which was not disputed by the importer. In view of the violation of law, the original authority had confiscated the goods and had imposed fine. The Commissioner (Appeals), however set aside the same on the premise that once an order of re-export has been done, the question of imposition of fine does not arise.

2. We have heard both sides in the matter.

3. The learned SDR brought to our notice the Larger Bench's judgment rendered in the case of Hemant Bhai R. Patel v. CC, Ahmedabad, 2003 (87) ECC 823 (Tri.LB) : 2003 (153) ELT 226 (Tri.LB) wherein it has been held that when there is a violation of law, then the power to impose redemption fine as well as penalty is sustainable even if the authority has granted permission for re-exporting the goods. The learned Counsel prayed for reduction of fine. This was opposed by the SDR on the ground that the fine imposed by the original authority was very minimum. The find was only Rs. 30,000 and no penalty has been imposed which was less than 10% of the value of the goods, which had been valued at Rs. 3,38,661.

4. On our careful consideration, we agree with the learned SDR that the ratio of the Larger Bench judgment rendered in the case of Hemant Bhai R. Patel v. CC, Ahmedabad are applicable to the facts of this. There is a clear violation of law inasmuch as that the imported goods had not satisfied the food standards in terms of the Prevention of Food Adulteration Act, 1954. The test results had clearly shown that the imported dates were infected with insects and that the same where liable for confiscation. The original authority had imposed only 10% of Redemption Fine, which cannot be said to be on higher side. In view of the Commissioner (Appeals) Order being not in consonance with law, therefore, the prayer of the Revenue to set aside the same is required to be accepted in the light of the Larger Bench's judgment cited before us. There is no ground for reduction of Redemption fine. The Revenue appeal is allowed by setting aside the impugned order and we confirm the Order-in-Original. Appeal allowed.

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