ORDER
V.P. Gulati, Member (T)
1. This appeal has been filed by the Revenue against the order of Collector of Customs, Madras. Under the impugned order the learned lower authority has confiscated goods namely orthoxylene valued at Rs. 1,72,02,739/- and allowed the same to be redeemed on payment of redemption fine of Rs. 4,00,000/-. The Revenue has filed an appeal against the order of the learned lower authority on the ground that the redemption fine levied by the learned lower authority is grossly inadequate taking into consideration the value of the offending goods and have urged as under in the grounds of appeal:
“Even though the adjudicating authority has the discretionary powers to decide the penalty amount, he is bound to exercise his discretion judiciously and with responsibility. The gravity of offence warranted imposition of higher fine and penalty.”
2. The learned Departmental Representative pleaded that admittedly the goods in question were not covered by any licence and were liable to confiscation. He has pleaded that the learned lower authority has taken note of the fact that during the period from 6-11-1990 to 19-2-1991 the goods could not be imported under OGL and the appellants had imported the goods during the period when the restriction was applicable. He pleaded merely because the goods were subsequently allowed import under OGL and also they were importable under OGL before the period in question cannot be a ground for leniency as the import was in violation of law as applicable at the relevant time. As it is, on the grounds of foreign exchange reserve crunch, the appellants had been issued only licence for a limited amount of Rs. 2.00 crores as against their application for Rs. 11.05 crores. He has pleaded that without taking into consideration the margin of profit and the gravity of the offence of importation without an import licence, the learned lower authority has levied a lower redemption fine by merely stating that the goods imported are raw materials and the appellants are the actual users.
3. On behalf of the respondents it is submitted that the respondents could not produce a licence covering the goods in question and had sought for bonding of the goods under Section 59 and which was allowed and subsequently they had also executed a separate ITC Bond for production of a valid licence before actual clearance of the goods from the bond. He has pleaded that the goods ultimately were allowed clearance under DEE Scheme after the confiscation order was passed. He has, therefore, prayed that as it is no redemption fine is required to be levied as the goods have been allowed clearance under DEE Scheme and in any case the facility for importation under OGL was only temporarily suspended only for a period of about 2 months on account of foreign exchange reserve crunch. The appellants pleaded that after importation of the goods they had deposited the same in the warehouse and had hoped that on account of the nature of the raw materials involved the licence would be issued. We had put it to the learned representative of the respondents as to how the goods which had been confiscated and legally had become the property of the Government subject to the release on payment of redemption fine could have been allowed release under DEE Scheme when the order of confiscation subsisted, he has nothing specific to say in this regard.
4. We have given a careful thought to the pleas urged by both the sides. The issue relates to the importation without a valid import licence. The goods therefore were rightly confiscated by the learned adjudicating authority under Section 111(d). It has not been contested by the respondents that the goods at the relevant time could not be imported under OGL and a valid import licence was required for the importation of the same. The very fact that there was foreign exchange crunch would go to show that the restriction imposed should have been strictly adhered to and no commitment of the foreign exchange should have been made in violation of the law. The restrictions placed in public interest when the country was placed in a delicate position foreign exchangewise, should have been scrupulously observed and not lightly taken. The respondents, therefore, should not have gone ahead with the importation at the relevant time when the restriction was in force. The fact that the goods imported are raw materials and that these were intended for the appellants as actual users may be factors to be taken into consideration for the purpose of levying redemption fine, but in a case like this, due weightage should have been given to the public interest and the purpose for which the restriction for importation had been placed and in any case any leniency shown should have been after taking into consideration the margin of profit in respect of the goods in question, among other things. The learned lower authority has not even attempted to ascertain the margin of profit or taken this aspect into consideration. We have also been informed that the appellants became eligible to clear the goods under the DDE Scheme later from the Bond against the licence issued under that scheme. The plea of the respondents is that question of eligibility for clearance of the goods under the DEE Scheme of the goods which had been imported earlier without an import licence in violation of the law as established could be taken to be covered by the licence produced later under the DEE Scheme is also required to be considered. It is pleaded that the goods came to be covered by the licence issued under the DEE Scheme and were allowed clearance from Bond and if this licence under this scheme covered the importation, the goods could not be held to be confiscable. We observe the facts regarding the clearance of the goods as stated and production of licence as above are not before us. A statement however has been made across the bar that the same Collector who had adjudicated the matter has allowed release of the goods under the DEE Scheme without any redemption fine. We are not able to understand how this could be done when the goods already stood confiscated. In view of our discussions above we hold that the learned lower authority’s order is not a proper order so far as the imposition of redemption fine as pleaded by revenue is concerned and we set aside the same and remand the case for de novo adjudication in the light of our observations above and after taking into consideration the pleas made by both sides. The appeal is therefore remanded to the learned lower authority for de novo consideration in the light of the observations above and after taking into consideration the pleas made by both the sides and after affording the respondents an opportunity of personal hearing. The appeal is therefore allowed on the above terms.