Per S.L. Peeran : The short question that arises for consideration in the present appeal is as to whether the redemption fine of Rs. 20 lakhs imposed under Section 125 of the Customs Act, 1962 on the goods viz., Fresh Garlic, valued at Rs. 51,50,195 c.i.f., is justified including imposition of penalty of Rs. 10/- lakhs, under Section 112 (a) of the Customs Act, 1962.

2. The learned Commissioner in the impugned order has observed that the goods are covered by ITC (HS) classification code 07003.20 and is a restricted item and not permitted to be imported except against licence and require special import licence. There is no findings as to the reason for imposition of the above redemption fine of Rs. 20 lakhs on the appellants in terms of Section 125 of the Customs Act.

3. Shri Sudhakar, learned Counsel for the appellants invited our attention to page 35 of the paper book wherein the appellant has worked out the margin of profit which in this case and like cases. He submits that the margin of profit is the basis for working out fine and in support of his plea he invited our attention to the decision in the case of VG Mohanan Vs. CC, Chennai reported in 2000 (41) RLT 475 (CEGAT)=2000 (112) ELT 722 (T) (sic). He submitted that this Bench has remanded the case for de novo consideration for working out the margin of profit and re-adjudicate the matter. He seeks for a similar order in the present appeal.

4. The learned DR defended the order and submits that although the learned Commissioner has not given any reason in his order, still the goods are confiscable and fine can be imposed though the working out may not have been given.

5. In counter the learned Counsel referred to the three Bills of Entry of another importer, i.e. Shah Marketing Corporation, wherein the same Commissioner has imposed redemption fine @ 14%. Thus there is clear violation of principles of natural justice. He has produced copies of Bills of Entry in respect of Shah Marketing Corporation and two other importers.

6. On consideration of the submissions made, we notice that the appellants are not challenging the confiscability of the goods viz. Imported Fresh Garlic. The only challenge is with regard to the quantum of redemption fine imposed. The Tribunal in the case of VG Mohanan Vs. CC, Chennai (supra) has remanded the matter to re-calculate the redemption fine in terms of the margin of profit and the findings recorded in paras 5 6 of the said order are reproduced herein below:

5. We have considered the submissions and have perused the two orders, one passed in 11/99 and the present order passed in 2/2000. The order passed in 2/2000 does not bring out any circumstances different as regards change in margin of profit, except that one person has utilised the name of another importer to import the goods. We therefore, cannot find any reason in the present order for imposition of higher penalties. We are aware, that imposition of penalty and redemption fine are at the discretion of the adjudicating officer, but he has to take the totality of a particular case into consideration. However, discretion has to be exercised judicially by the adjudicator and he has also to consider the formula prescribed under Section 125 of the Customs Act to determine redemption fine. Redemption fine is related to the margin of profit and for heavy redemption fine of almost 80% as in this case, it has to be established that the margin of profit is substantially higher than the case where the redemption fine of only 25% was imposed as in the case decided in 11/99. There is no such finding arrived at by the Commissioner in regard to the margin of profit having gone up considerably from 11/99 to 2/2000 or that the importer in the present case was a repeated offender of the Customs Act read with Import Trade Control law of the country. The order is therefore, required to be set aside for non-application of mind and it should go back for de novo determination of the issue involved in this cas