V.K. Agrawal, Member (T)
1. M/s Punj Llyod Ltd. have filed the present appeal being aggrieved with the Order-in-Appeal No. 348/98 dated 11-12-1998 passed by the Commissioner of Customs (Appeals) Mumbai.
2. Shri Naveen Mullick, learned Advocate, mentioned that the Appellants had imported one second hand old and used diesel generating set 400Hz, 1500 KVA and four new pre heat coils; that the Deputy Collector of Customs confiscated the same with an option to redeem the same on payment of fine of Rs. 3 lakhs and imposed a penalty of Rs. 30,000/- holding that the goods had been classified under sub-heading 8502.12 of the First schedule to the Customs Tariff Act which is for electric generating sets of out put exceeding 75 KVA but not excluding 375 KVA; that in terms of Para 156 serial No. J(11) of Import Policy 1992-97, the import of diesel generating sets up to 1500 KVA required a valid import licence; that in absence of valid licence goods in question were liable for confiscation; that the Commissioner (Appeals) also upheld the confiscation of the goods under the impugned Order. However, Commissioner (Appeals) reduced the redemption fine to Rs. 2 lakhs and penalty to Rs. 10,000/-. The learned Advocate submitted that the impugned goods is not a consumer item; that goods in question generate heat energy and not electric energy and are industrial goods; they had not misdeclared the goods at all and they are actual users; that similar equipments in the past had been imported without production of import licence; the goods should have been allowed to be redeemed on nominal redemption fine; that similarly no penalty is imposable on the Appellants when the Adjudicating Authority itself agreed that they did not misdeclare the goods in any respect. He also mentioned that a Misc. application has been filed by them for raising an additional submission; that as an alternative the goods in question may be classified under Heading 85.14 of C.T.A.
3. Countering the arguments, Shri Ashok Kumar, learned D.R. submitted that the Appellants themselves had classified the impugned products under Heading 85.02 which was also not in dispute before both the lower authorities; that they cannot make out a totally new case and as such the Misc. application may be rejected. He further submitted that considering the value of goods involved (more than Rs. 18 lakhs) redemption fine of Rs. 2 lakhs and a penalty of Rs. 10,000/- cannot be considered to be harsh.
4. We have considered the submissions of both the sides. The Appellants have themselves classified the impugned products under sub-heading 8502.12 of C.T.A. which was not in dispute either before the Adjudicating Authority or first Appellate authority. In view of this position, they cannot raise a new question of classifying their product under a new Heading of the Customs Tariff. Accordingly, the Misc. application, filed by them, is rejected. Heading 85.02 applies to all electric generating sets and as it is not in dispute that a valid import licence was required under the Import Policy for importing generating set, the confiscation of the same confirmed in the impugned Order cannot be held to be wrong. We also agree with the learned DR that the redemption fine of Rs. 2 lakhs is not on the higher side at all and we do not find any reason to reduce the same. However, taking into consideration the findings of the Adjudicating Authority to the effect that the Appellants were actual user and there was no misdeclaration regarding description, quantity and value, we reduce the penalty from Rs. 10,000/- to Rs. 2,000/-only. But for this modification, the appeal is rejected.
