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CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, NEW DELHI
M. Gouri Shankar Murthy, P.C. Jain, JJ.
Ashwin Vanaspati Industries (P.) Ltd. -Appellant
Versus
Collector of Customs, Ahmedabad -Respondent
Order No. 142/1987-A, 142 of 1987
Decided On : 20-02-1987
M. Gouri Sankara Murthy, Member (J)
1. The facts, in so far material in this appeal against an order of adjudication dated 1.4.1983 by the Collector of Customs and Central Excise, Ahmedabad are:-
(a) a contract for the supply of 1231.508 M/Tonnes of Refined Industrial Coconut Oil was concluded between the appellant and M/s. Patel Holdings, Singapore on 11.1.1982, who had duly exported them to India by the vessel "Aurora Glory" through three Bills. of Lading for 155.7933 M/Tons, 6.15.1337 M/Tons and 460.581, M/Tons respectively;
(b) The appellant filed, on 2.11.1982, three separate Bills of Entry Nos. 263, 264 and 265 in respect of the aforesaid shipments. The ship arrived on 4.11.1982;
(c) A notice dated 3.2.1983 was issued to the Appellant requiring them to show cause against confiscation of the goods under S.111(d) and a levy of penalty Under Section 112 of the Customs Act, 1962. This notice was adjudicated by the Collector who by his aforesaid order held that the import licences produced by the appellant did not cover the imports and directed confiscation of the coconut oil in question, subject to redemption on payment of a fine of Rs. 85,00,000/-, for import thereof in violation of the provisions of the Import Policy AM-80-81, 81-82, and 82-83 and S.3(1) of the Imports and Exports (Control) Act, 1947 as amended and read with S.11 of the Customs Act, 1962. No penalty was, however, imposed;
(d) The instant appeal was the sequel.
2. Before us, Shri Cooper, Learned Senior Counsel for the Appellant submitted straightaway that the judgments of the Tribunal in the Appeals preferred by 'M/s Jayant Oil Mills M/s. Ailena Impex [Order No. 656/84-A in Appeal No. CD(SB)898/83-A and Order No. 503/85-A in Appeal No.CD(SB) 1410/83-A] govern the facts of this case both on the issue of liability for confiscation as well as the quantum of redemption fine and, accordingly, prayed for an order reducing the amount of such redemption fine to 35% of the landed cost as was held in the case of Jayant Oil Mills. In this context, he submitted inter alia, that -
(a) There are no features that distinguish the facts of this case from those of M/s. Jayanth;
(b) A redemption fine cannot be penal but only representative of the value of the confiscated goods to the importer;
(c) Even though the quantification of such fine may, in terms of Section 125 of the Customs Act be discretionary, subject however, to a ceiling of the market price thereof less the duty chargeable, the exercise of such discretion cannot, obviously, be arbitrary. Nor can the quantum of fine differ from case to case, notwithstanding that the circumstances are identical.
3. In effect therefore, the counsel requested for a reduction of the redemption fine of Rs. 85,00,000/- to 35% of the landed cost which according to him was Rs. 98,00,000/-. The reduced fine would in accord with his submission will work out to Rs. 34,30,000/T.
4. Shri Ajwani, for the Respondent, submitted on the contrary, that once the only grounds urged against the order under appeal - namely those relating to the determination of the assessable value in grounds (a) (f) and (a) (g) of the Memorandum of Appeal - are given up, the order under appeal has, necessarily, to be confirmed. There is nothing else that remains in the appeal. Further, in his submission, -
(a) A fine in lieu of confiscation being, admittedly, discretionary, need not, necessarily, conform in quantum to the one levied in another case, however much the facts and circumstances in both the cases are identical. Aggravating or extenuating circumstances, if any, are to be taken into account in any such determination. Nor does the exercise of such discretion by a quasi-judicial authority in adjudication call for any interference when there is no indication as to how exactly the discretion came to be exercised. [Reliance upon MANU/WB/0056/1966 : AIR 1966 Cal. 237 upheld in MANU/SC/0216/1970 : AIR 1.971 S.C. 293 - Sheikh Mohd. Omar v. Collector of Customs];
(b) In the c
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