ORDER
G.P. Agarwal, Member
1. Heard both sides.
2. Detailed facts of the case are immaterial for the purpose of this order, save to state broader outlines. The respondent imported a consignment of 126 bales declared to contain wool waste of quantity of 47202 kgs. valued at UK £40,121.70 cif Bombay and sought clearance. However, the Additional Collector of Customs found the importation illegal and ordered for the confiscation of the same under the provisions of the Customs Act read with Section 3(2) of the Import arid Export (Control) Act, 1947. After holding so, he allowed the respondent to get the release of the imported goods on payment of a redemption fine of Rs. 3,25,000/- and also imposed a personal penalty of Rs. 10,000/- on the respondent under Section 112 of the Customs Act, 1962.
3. It appears that the Central Board of Excise and Customs in exercise of their powers under Section 129-D(1) of the Customs Act, 1962 took the matter in review and directed the Additional Collector of Customs, Bombay to file the application (Appeal) to the Tribunal, for enhancement of the quantum of personal penalty on the ground that it is unduly low and since there was an attempt to evade duty to the tune of Rs. 10,75,629/-, it should [be] commensurate with the gravity of the offence. Accordingly, the present appeal was filed by the Collector of Customs, Bombay.
4. Arguing on behalf of the appellant, Shri Jaya Narayanan Nair, learned JDR submitted that the instant case was a case of premeditated offence and hence the department could not lay their hands on the incriminating documents and further that 49 intact bales of the imported goods were found to contain 19,855 kgs. of synthetic waste. This was done with the intention to keep the contraband goods containing synthetic waste behind the 77 bales of wool waste and further that the respondent intentionally mis-declared the goods to evade payment of duty.
5. In reply Shri K.G. Seth, learned Counsel for the respondent submitted that there is no room for enhancement of the personal penalty as, according to him, duty itself was not leviable. To substantiate his submissions that duty was not leviable he cited the case of Collector of Customs, Bombay v. Swastic Woollen Mills (P) Ltd., and Order No. C/218/90-D dt. 10.4.90 and also the case of Hindustan Steel Ltd. v. State of Orissa, AIR 1970 SC 243.
6. We have considered the submissions. At the outset it may be stated that the case of Collector of Customs Bombay v. Swastic Woollen Mills (P) Ltd. and Collector of Customs, Bombay v. Prabhat Woollen Mills Ltd. Order No. C/218/90 are not applicable to the instant case. In the case of Collector of Customs, Bombay v. Swastic Woollen Mills, supra the question was whether the wool material was the wool waste or not and in the case of Collector of Customs, Bombay v. Prabhat Woollen Mills and Ors. supra the question was regarding the correct classification of synthetic waste consisting of “white mass fibre with cut slivers and rovings of different lengths alongwith small amounts of brown and dark brown mass of fibres which was composed entirely of acrylic fibres”. The case of Hindustan Steel, supra is also not helpful because in that case the observation was made by the Apex Court to the effect that even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty when there is a technical breach of the provisions of the Act. In the instant case as aforesaid the respondents were found guilty on the ground that they mis-declared the goods with intent to evade the payment of duty. Needless to state that the respondents have not filed any appeal challenging the imposition penalty by Asstt. Collector and it is only the Department that has come up before us for the enhancement of the penalty imposed by the Additional Collector of Customs, Bombay as aforesaid. From the facts stated in the review order passed by the Board and reiterated in the memorandum of appeal we find that the respondent could not meet the grounds argued before us to the effect that the instant case was a case of deliberate attempt to evade payment of duty of Rs. 10,72,629/-. From the adjudication order itself we find that the Additional Collector of Customs himself held that 49 intact bales were found to contain 19,855 kgs. of synthetic waste and it was a matter of fact that 77 bales containing woollen waste were used to cover the import of prohibited goods of synthetic waste contained in 49 bales and as the bales containing woollen waste could be used to keep the other bales out of sight or observation of the prohibited goods by the officers of the Customs, we hold that these bales are liable to’ confiscation and the party was also guilty of mis-declaration. Thus we find that penalty of Rs. 10,000/- does not commensurate with the facts and circumstances of the case (sic). It may be stated that, the Additional Collector of Customs, Bombay while adjudicating the case had also ordered for the release of the confiscated goods on payment of a redemption fine of Rs. 3,25,000/-and there is no prayer in the appeal before us for enhancement of said redemption fine. It was also the contention of the learned counsel for the respondent that looking to the amount of redemption fine and amount of penalty of Rs. 10,000/- be not enhanced as it may amount to double jeopardy – an argument which does not impress us at all because no question of double jeopardy arises as confiscation and personal penalty are quite two different things and are permitted under law.
7. Thus taking all the facts and circumstances of the case we enhance the penalty from Rs. 10,000/-to
Rs. 50,000/- (Rupees Fifty Thousand) only.
8. In the result the appeal is allowed as aforesaid.
(Pronounced in the open Court)