2018 (3) TMI 1262 – CESTAT MUMBAI – 2018 (363) E.L.T. 1032 (Tri. – Mumbai) – EPCG Scheme – import of restricted item – it was alleged that since the CIF value of the marble slabs under import was US $ 38.470 PSM, which is less than US$ 50 PSM the said import is not allowed and the goods are liable for confiscation – Held that: – there is no dispute that the appellant have contravened the provisions of Foreign Trade Policy by which goods valued below US $ 50 falls under the restricted category for which the licence is required for import. Though the appellant have imported goods valued at US $ 38.470 PSM CIF but did not obtain the licence. Accordingly, the goods imported is restricted – confiscation upheld.
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Considering the fact that the appellant is the actual user and there is no malafide intention in not obtaining the licence the appellant deserve leniency – the redemption fine and penalty in the impugned order is at higher side which needs to be reduced.
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Appeal allowed i
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labs is restricted and should be permitted freely only if the CIF value is US$ 50 PSM and above. Since the CIF value of the marble slabs under import was US $ 38.470 PSM, which is less than US$ 50 PSM the said import is not allowed and the goods are liable for confiscation under Section 111(d) of the Customs Act, 1962 read with para 5.1 of the Foreign Trade Policy 2004-09. The adjudicating authority confiscated the goods and imposed a redemption fine of ₹ 13 lakhs and imposed a penalty of Rs. 4 lakhs. The value of the goods was re-determined at US $ 50 PSM CIF against US $ 38.470 PSM CIF. Being aggrieved by the order-in-original appellant filed the present appeal. 2. Shri Vinod Awtani, Learned Chartered Accountant appearing on behalf of the appellant submits that they placed an order for import of marble slab US $ 35 PSM in the month of August 2008. However, import of polished marble took place in December 2008. In the meantime, appellant obtained the EPCG licence wherein import
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nfiscation of goods and penalty was warranted. He alternatively submits that the appellants are actual user importer, therefore, a lenient view may be taken. He placed reliance on the following judgments. i. Rational Art & Press Pvt Ltd v. Commissioner of Customs (Imports), Mumbai 2007 (215) ELT 0522 (Tri-Bom.) ii. KH Arind v. Commissioner of Customs, Chennai 2006 (205) 674 (Tri.-Chennai) iii. Photphone v. Collector of Customs 1994 (73) ELT 157 3. As regards the penalty he placed reliance on the following judgments. i. ND Metal Industries Ltd v. Commissioner of Customs (Import), Nhava Sheva 2007 (220) ELT 807 (Tri.-Mum.) ii. Safari Food Pvt Ltd. v. Commissioner of Customs (Import), Nhava Sheva 2007 (215) ELT 271 (Tri.-Mum.) iii. S P Sacheva v. Commissioner of Customs, New Delhi 2002 (149) ELT 412 (Tri.-Del.) 4. Shri Ahibaran, Learned Additional Commissioner (AR) appearing on behalf of the respondent submits that as per the condition of notification, marble is permitted to be import
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