ORDER
S.L. Peeran, Member (J)
1. The only question that is required to be answered in this appeal is as to whether the goods are liable for confiscation and for imposition of fine and penalty under Sections 111(m) & 112(a) of the Customs Act respectively.
2. Appellants had declared the goods as “prime quality goods”. However, on examination, it was found to be “CRCA coils-defective”. They did not have licence also for clearing the seconds, although they had produced DEEC licence for prime quality. The Commissioner in the impugned order has held that they can seek clearance of the goods on production of licence for “CRCA Coils–defective”.
3. Ld. Counsel Shri A.K. Jayaraj appearing for appellants submits that Section 111(m) of the Customs Act refers to “any goods which do not correspond in respect of value or in any other particular with the entry made under this Act or in the case of baggage with the declaration made under Section 77 in respect thereof, or in the case of goods under transhipment, with the declaration for transhipment referred to in the proviso to Sub-section (1) of Section 54”. He submits that in the present case, the importer has accepted the value of US$ 280 per MT and, therefore, the provision of law for confiscation and imposing penalty does not apply in the facts and circumstances of the case. He submits that therefore the order, confiscating the goods and imposing RF and penalty is required to be set aside. In the alternative, he submits that Customs House has been imposing in respect of same goods RF @ 20,000 and Rs. 5,000 penalty. He produces the Order-in-Original No. 640/02-Group 7 dated 19.4.2002 and OIO No. 515/2002-Gr. 7 dated 5.4.2002 to show that RF and penalty imposed and submits that in the present case it is not in keeping with the Customs House practice. He prays for allowing the appeal with a direction to release the goods without order of confiscation and imposition of fine and penalty.
4. On the other hand, Ld. DR points out that as the appellants have not produced licence required to clear “CRCA Coils-defective”, the goods are liable for confiscation and for imposition of penalty. Hence, Ld. DR submits, there is no infirmity in the order.
5. In reply, Ld. Counsel submits that where a licence is produced at the time to clearance, then in such circumstance, Redemption Fine and penalty is not imposable as held by the Tribunal in the case of Zazman Exports v. CC .
6. We have carefully considered the submissions and notice that the Tribunal in the case of Zazman Exports (supra) set aside the RF and penalty on the assessee’s producing the required licence. In the present case, the Commissioner has given an opportunity to the appellants to produce the licence at the time of clearance. In case, the appellants produces the required licence, the Commissioner has to reconsider with regard to the prayer for non-imposition of RF and penalty in terms of judgment cited.
7. In so far as the prayer of appellants that no RF and penalty, in the circumstance of the case, is required to be imposed is concerned, we are of the considered opinion that in the present case, the appellants did not produce the licence and the licence produced by them was not in keeping with the description of the goods. Therefore, we cannot fault the Ld. Commissioner for imposing RF and penalty, but the quantum of RF and penalty has to be in terms of Custom House practice.
8. In this regard, Ld. Counsel has produced two orders of the same Commissionerate, wherein the RF and penalty has been fixed at the rate of Rs. 20,000 for the value of goods Rs. 3,73,423 & Rs. 3,69,844 and the penalty of Rs. 5000. Therefore, in the facts and circumstances of the case, we set aside the impugned order and remand the matter to the Commissioner of Customs, Chennai for de novo consideration to take into consideration the plea raised by the Counsel that the goods are not liable for confiscation and for fine and penalty, in case if the importer produces licence at the time of clearance. In the alternative, if they do not produce the required licence, in such a case, the practice of the Custom House for imposing fine and penalty in terms of Order-in-Original produced before us is required to be maintained. The Commissioner shall readjudicate the matter in the light of submissions made by the Ld. Counsel after grant of sufficient opportunity of hearing to the appellants. Thus, the appeal is allowed by remand to the Commissioner of Customs (Sea port), Chennai.
9. At this stage Ld. Counsel submits that goods are lying in the docks without clearance and, therefore, a direction be given to the learned auothority to dispose of the matter within two weeks and also prays for copy of the order by ‘dasti’.
10. Heard Ld. DR who submits that time bound order may create undue hardship to the Commissioner concerned. Therefore, a reasonable time may be given.
11. We have considered the submission made by both sides. The prayer of the Counsel is accepted. Ld. Commissioner shall expeditiously dispose of the matter remanded preferably within 45 days from the date of receipt of this order. Registry to issue this order out of turn by ‘dasti’ as prayed.