Commissioner Of Customs (Imports), ... vs M/S. Mayfair

[Arising out of Order-in-Appeal No.C.CUS. No.1287/2009, dated 19.10.2009 passed by the Commissioner of Customs (Appeals), Chennai]

1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? :

2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? : 3. Whether the Member wishes to see the fair copy of the Order? :

4. Whether Order is to be circulated to the Departmental Authorities? :

COMMISSIONER OF CUSTOMS (IMPORTS), CHENNAI Appellant

Versus

M/s. Mayfair Respondent

Appearance:

Ms. Indira Sisupal, AC (AR) Shri S. Krishnanandh, Adv. For the Appellant For the Respondent

CORAM:

Honble R. Periasami, Technical Member

Date of hearing : 23.03.2015 Date of decision : 23.03.2015

Final Order No. 40347 / 2015

Revenue filed appeal against the impugned order dated 19.10.2009. The issue relates to importation of second-hand photocopiers without licence. The Adjudicating authority has enhanced the value, imposed penalty of Rs.4,10,000/- under Section 112 (a) of the Customs Act, 1962 and imposed redemption fine of Rs.4,30,000/- under Section 125 of the Customs Act, 1962. On appeal by the respondent, the lower appellate authority passed the impugned order by reducing the fine and penalty to Rs.2,70,000/- and Rs.90,000/- respectively, and the Revenue filed appeal against the same.

2. Learned Authorised Representative reiterated the grounds of appeal and submits there is a clear case of misdeclaration both in quantity and value. She further reiterated that the original authority has rightly imposed the redemption fine and penalty. In this regard, she relied on the decision of the Tribunal in the case of Commissioner of Customs, Chennai Vs Jay Dev Industries reported in 2012 (279) E.L.T.375 (Tri.-Chennai).

3. On the other hand, the learned counsel for the respondent submits that the Revenue filed appeal, only on the ground that the respondent is habitual offender. He submits that Additional Commissioner in his Adjudication order at para (4) has clearly brought out that such an offence was committed for the first time quite contrary to the Revenues contention of the offence being repetitive and nothing substantial has been furnished to the department to prove the same. He further submits that Commissioner (Appeals) after taking into consideration the decision of the Honble High Court of Madras. In the case of Commissioner of Customs, Tuticorin Vs Sai Copiers reported in 2008 (226) E.LT.486 (Mad.) and following the decision of the Tribunal, reduced amount of penalty and redemption fine to 5% and 10% of the value of the goods respectively. In this regard, he also relied on the decision of the Honble High Court of Madras in the case of Commissioner of Customs (Export), Chennai Vs Sri Venkateswara Enterprises reported in 2014 (310) E.L.T.433 (Mad.). The Honble High Court in its subsequent order relied on the Honble High Courts Order dated 31.01.2008 and reaffirmed the imposition of penalty, upheld by the Tribunals order.

4. Heard both sides and perused the records.

5. The short issue in this case is that the Revenue has come on appeal only against reduction of fine and penalty by lower appellate authority. In the grounds of appeal, the only reason putforth by Revenue is that the appellant is an habitual offender and no other ground were putforth to substantiate the same. On the other hand, I find from the Order-in-Original dated 28/09/2007 at page 5 in para (iv), it is clearly stated that the offence committed by the respondent is for the first time and accordingly imposed penalty. This fact on record has not been disputed by the Revenue. It is seen that the lower appellate authority, while reducing the fine and penalty has taken into consideration, the Honble High Courts order in the case of Commissioner of Customs, Tuticorin Vs Sai Copiers (supra). Further, the Honble High Court in its recent order in the case of Commissioner of Customs (Export), Chennai Vs Sri Venkateswara Enterprises (supra) at para (13) relied their own order, in the case of Commissioner of Customs, Tuticorin Vs Sai Copiers (supra) and reaffirmed the same. By respectfully following the Honble High Courts order above, I do not find any infirmity in the reduction of fine and penalty by the lower appellate authority. I also find that Revenue has not putforth any material evidence to prove that the respondent is a habitual offender. Accordingly, the appeal filed by the Revenue is rejected and the order passed by the Adjudicating authority is upheld.

(Dictated and pronounced in open court)

(R. PERIASAMI ) TECHNICAL MEMBER

ksr 27-03-2015

DRAFT Remarks

I II III

Date of dictation 23.03.2014

Draft Order - Date of typing 24.03.2015

Fair Order Typing 27.03.2015

Date of numbering and date of dispatch

C/00093/2010 2