G.A. Brahma Deva, Member (J)

1. This appeal arises out of and is directed against the Order-in-Original No. 2/91(A) dated 28-8-1990 passed by the Additional Collector of Customs, Customs House, Calcutta.

2. The appellants imported 81 cases of ball-bearings valued at Rs. 1,50,000/- (CIF) from Democratic People Republic of Korea. Acting on intelligence, Officers of Dock Intelligence Unit (Appraising) seized the subject consignment on 29-6-1989 under Section 110 of the Customs Act, 1962 with a reasonable belief that the goods were imported unauthorisedly, misdeclaring the value of the same. The party did not file any bill of entry or took any initiatives to clear the goods even after the seizure of the same. Show Cause Notice was issued to the Importer asking them to show cause as to why the above referred goods could not be confiscated under Section 111(d) of the Customs Act, 1962 and why the penalty should not be imposed under Section 112. It was submitted on behalf of the appellants that they could not file bill of entry for clearance of the goods because they did not find it economically viable to take delivery of the goods due to an unexpected increase in the rate of duty and requested for re-export of the goods. They also informed that they are ready to meet all expenses relating to port charge, wharf rent etc. The Additional Collector (Customs) who adjudicated the proceedings has observed that the Department has no objection for re-export of the consignment but importation of the present consignment except with an import licence is prohibited under Section 3(1) of the Import & Export (Control) Act, 1947 (as amended) read with Import Control Order No. 17/55 dated 7-12-1955 (as amended) and Section 11 of the Customs Act, 1962. Accordingly, he ordered for confiscation of consignment under Section 111(d) of the Customs Act, 1962. He allowed Importer to re-export the goods on payment of token redemption fine of Rs. 35,000/-. He refrained from imposing any personal penalty on the Importer. Feeling aggrieved by the said order, the appellants have come before the Tribunal by way of this appeal.

3. Shri A.K. Jain, learned Advocate, appearing for the appellants, submitted that there is no provision under the Act empowering the Adjudicating Authority to impose redemption fine while permitting re-export of the goods. He said that this issue is squarely covered by the decision of the Tribunal in the case of Goodyear India Ltd. v. Collector of Customs, Delhi, in Appeal No. C/2391/87-NRB as per Order No. A/32/90-NRB dated 27-12-1990. He filed a copy of the Order for my perusal. He also referred to the decision of the Tribunal in the case of Uma Textile v. Collector of Customs, reported in MANU/CE/0082/1989 : 1990 (48) E.L.T. 433 wherein it was held that "The appellants have acted very fairly and refused to clear the goods. The Additional Collector had drawn certain conclusions without any basis. The Department has not produced any documents to prove the manipulation of the transaction to import the goods, and that be the case, the contravention of the above sections is not sustainable. The reasoning of the Addl. Collector seems to be unreasonable. As such, the order is liable to be set aside. Penalty of Rs. 2.5 lakhs imposed on the appellants is set aside".

4. Shri Ashok Mehta, learned SDR conceded that this issue is covered by the decision in the case of M/s. Goodyear India Ltd. (supra), but he has chosen to reiterate the findings given in the impugned order.

5. I have carefully considered the submissions made by both sides and perused the records including citations. This issue had come up for consideration in the case of M/s. Goodyear Limited (supra) as it was rightly pointed out by both sides. While considering this issue it was discussed by the Tribunal with reference to Section 125. Accordingly, it was observed that Section 125 empowers the authorities to give option to pay fine in lieu of confiscation. The language used in Section