ORDER
Jyoti Balasundaram, Vice President
1. After hearing both sides for some time on the application for waiver of pre-deposit of penalty of Rs. 9 lakhs imposed upon the appellants herein, we found that it was possible to hear and decide the appeal itself at this stage and hence proceed to do so with the consent of both sides, after waiving pre-deposit.
2. The brief facts of the case are that the appellants herein imported goods under Bill of Entry Nos. 200 and 201 both dated 23.4.2003. In Bill of Entry No. 200, the goods were declared as ‘Synthetic Knitted Pile Fabrics’ falling under Customs Chapter Tariff Heading No. 6001.00 and the declaration in Bill of Entry No. 201 was ‘Polyester Fabrics’ classifiable under CTH 5407.52. The goods were tested; the goods covered by B/E No. 201 were found to be ‘Woven Dyed Fabrics made of filament having short cut piles’ and goods covered by the other B/E were found to be ‘Decorated Knitted Fabrics having short piles on one side and wholly made of polyester’. On this basis, show cause notice dated 29.10.93, proposing change of classification of goods imported under Bill of Entry 200 to Chapter Tariff Heading 5801.34 and goods covered by the B/E 201 to CTH 6001.00, confiscation of the seized goods and imposition of penalty, was issued to the importers. The importers, interalia, raised the plea of wrong shipment. The Commissioner of Customs, upheld the charge of mis-declaration and hence confiscated polyester knitted pile fabrics under Section 111(m) of the Customs Act, 1962 with option to redeem the goods for re-shipment on payment of fine of Rs. 7 lakhs; he confiscated woven dyed pile fabrics of polyester under Section 111(m) and since these goods were not available for confiscation as they had already been exported, he imposed a fine of Rs. 1.25 lakhs. He also imposed a penalty of Rs. 9 lakhs upon the importers. Hence, this appeal.
3. We have heard both sides. There is no challenge to the finding of mis-declaration. Therefore, the confiscation is upheld. However, in the totality of the facts and circumstances of the case, we reduce the redemption fine from Rs. 8.25 lakhs to Rs. 3 lakhs (Rupees Three lakhs) only. Penalty upon the appellant is sustainable as they mis-declared the goods with intention to manipulate further export/deemed export – the appellants admit that they could not use the goods as found in the manufacture of their final products – however, in the facts and circumstances of the case, the quantum of penalty is required to be reduced. Accordingly, the penalty is reduced to Rs. 2,00,000/-(Rupees Two lakhs).
4. Subject to the above modification, the impugned order is, otherwise, upheld.
5. The appeal is thus partly allowed.
(Dictated in Court)