JUDGMENT
1. Rule, returnable forthwith Shri Bulchandani waives service on behalf of respondents. Counsel heard.
2. By this petition filed under Article 226 of the Constitution of India, the petitioners are challenging legalities of the order dated October 16, 1989 in respect of penalty of Rs. 76,098/- imposed by the Assistant Collector of Customs and confirmed by the appellate authority. The facts leading to the passing of this order are not in dispute. On July, 20, 1982, the petitioners filed manifest in respect of import of several articles. The articles in dispute is Pipe No. 269 and which formed part of Item No. 133 of the manifest. The Assistant Collector issued show cause notice for short-landing on November 11, 1987 in respect of this article and some other articles with which this petition is not concerned. After hearing the petitioners, the Assistant Collector passed order on January 27, 1989 imposing penalty of Rs. 76,098/- in respect of short landing of Item No. 133. In appeal preferred by the petitioners, the Collector of Customs confirmed the order on October 16, 1989.
3. Shri Gomes, learned counsel appearing on behalf of the petitioners, sub-mitted that even accepting that goods under Item No. 133 were short landed and the Collector of Customs is entitled to levy penalty by assessing the duty under Chapter No. 84.66, imposition of fine of Rs. 76,098/- is not accurate. The learned counsel further urged to be 564. Taking that fact into consideration, the calculation of the is clearly incorrect. There is considerable merit in the submission of the learned counsel. The importer was Tata Hydro Electric Supply Company Limited and the supplier was M/s. Babcock PED Ltd. from Great Britain. The supplier has issued a certificate setting out that the value of Pilpe No. 269 was 564. The Assistant Collector has no material whatsoever to dispute the accuracy of the statement made in the certificate. Shri Gomes is, therefore, right in claiming that the assessment of penalty has to be on the basis that the value of short landed goods was 564. Once this fact is accepted, then maximum penalty at the rate of 220% should not exceed Rs. 20,556 and the Assistant Collector was in error in imposing penalty of Rs. 76,098/- and the Collector in confirming the same and the orders are required to be modified and the penalty imposed in respect of Item No. 133 is required to be reduced from Rs. 76,098/- to Rs. 20,556/-.
4. Accordingly, rule is made absolute and the order of Collector in so far as imposition of penalty in respect of Item No. 133 is modified and the penalty imposed is Rs. 20,556/-. The petitioners shall pay the penalty amount of Rs. 20,556/- instead of Rs. 76,098/- within a period of four weeks from today. In the circumstances of the case, there will be no order as to costs.
