Per G.A. Brahma Deva :

Facts of the case in brief are that a post parcel bearing No. JP-51532/8/99 was received in the Foreign Post Office, Jaipur addressed to M/s. Shubh Gems, 2045, Stone House Pitalion Ka Chowk, Jaipur for which D-Call notice No. VIII(JFP)8/99/564 dated 23.8.99 was issued to the party to submit necessary documents like invoice I.E.C. No. technical literature and import licence etc. for the release of said parcel. In response to D-call notice dated 23.8.99, party claimed release of goods as re-imported parcel and in support of reimported goods they submitted export invoice No. 12/S/97-98 dated 13.2.98 and G.R. No. AN-255206. According to the department, on examination, the parcel was found to contain 10 lots of cut and polished emerald out of which 9 lots of cut & polished emerald bearing valued Rs. 14,05,673.10 were tallied with related invoice dated 13.2.88 whereunder the goods were exported and under G.R. Form No. AN-255206. But the remaining one lot of cut and polished emerald weighing 3396.79 cts. was not ascertainable from the above said export invoice.

2. Since this lot of cut and polished emerald was found in excess and it was not tallied with export invoice as such trade panel member on emerald was called for the valuation. The valuation of entire consignment of cut and polished emerald was made by the trade panel member on emerald. Valuation of 9 lots which were tallied with export invoice were found to be within the limits of 20% of those of the export invoice. The value of the disputed lot was ascertained to be Rs. 40/- per crt. Thus total value of the disputed lot of cut and polished emerald weighing 3396.79 cts. was ascertained at Rs. 1,35,871.60. The matter was adjudicated, the Commissioner who adjudicated the proceedings ordered for confiscation of the excess lot of emerald weighing 3396.79 cts. valued at Rs. 1,35,871.60 is liable for confiscation under Section 111 (d) of Customs Act, 1962. However, he has taken a lenient view and acceding to their request for re-export. He allowed re-export of emeralds weighing 3390.79 cts., on payment of a Redemption Fine of Rs. 40,000/- (Forty thousand). He also ordered confiscation of 9 lots and gave an option to redeem the same on payment of redemption fine of Rs. 10,000/-. In addition to this, he imposed a personal penalty of Rs. 1000/- (Rs. one thousand).

3. Arguing for the appellant, Shri K.K. Anand, ld. Advocate submitted that there was no intention on the part of the party to evade custom duty. It was a mistake on the part of the importer in sending excess emerald. This factual position was brought to the notice of the adjudicating authority, infact since the party did not want the item, he decided to export and re-export was permitted as can be seen from the order. He submitted that when once the re-export was permitted there was no justification to impose redemption fine relying upon the following decisions :-

M/s. Pedia Sales Corporation Vs. CC, 1992 (61) ELT 90 (T)

M/s. Skantrons (P) Ltd. Vs. CCE, New Delhi, 1994 (70) ELT 635 (T)

M/s. HCL Hewlett Packard Ltd. Vs. CC, New Delhi, 1997 (92) ELT 367 (T)

4. Arguing for the Revenue, Shri Sumit K. Das, learned JDR submitted that the decisions referred to by the Counsel are not applicable to this fact of this case because in those cases it was the first time import made by them. In the present case the party has imported and same was exported and again re-exported was permitted.

5. I have carefully considered the matter. The ratio of the decision of the cases referred to above by the Counsel is clearly applicable to this case. In those cases it was clearly held that there was no justification to impose redemption fine while permitting the importer to export the goods in terms of Section 125 of the Customs Act. In the instant case it is clear from the records that party has no intention to import the emerald and it was mistake committed by the exporter. In the facts and circumstances, following the ratio of