Order Date – 12 August 2022

Facts – 

• The Respondent, M/s. R.R. Traders, imported used tyres by classifying the product under CTH 40122090.  The used tyres of size 13” & 15” are Classifiable under CTH 40122020 and used tyres of size 16” & 20” are classifiable under CTH 40122010 attracting Basic Customs Duty@ 10% adv. on the assessable value. 
• In accordance  with Exim Code of ITC (HS) Classification of Export & Import items a specific licence is required for import of the used tyres classifiable under CTH 40122090. In the instant case, the highest declared value per tyre is USD 26 only and as such the present import requires a licence from DGFT, which the appellants do not posses. The value declared was not accepted. 
• As the appellants did not possess any valid licence and misdeclared the value the confiscation of the goods under Section 111 (d) & 111 (m) of the Customs Act, 1962 read with Section 3(3) of Foreign Trade (Development and Regulation) Act, 1992, imposition of redemption fine under Sec.125 of Customs Act, 1962 and imposition of penalty under Sec.112 (a) of the 

Customs Act, 1962 by the lower authority is sustainable.

• The Respondent filed an appeal and on 30.09.2010 by which the Commissioner (Appeals) has modified the order of the Assistant Commissioner to the extent of reducing the redemption fine imposed to Rs.1,60,000/- under Section 125 and penalty to Rs.80,000/- imposed under Section 112 (a) of Customs Act, 1962.
• Aggrieved the appellant (Department) filed an appeal.

Issue – 

• Whether the Appellant authority was correct in modifying the order passed by the original authority?

Order – 

• The Tribunal held that it is settled position in law that it is the discretion of the authority deciding to determine the quantum and fine and penalty as per the gravity of the offence involved.
• The total offence which is as per the order of the Assistant Commissioner, is about 10% of under valuation. Against the declared value of Rs 14,19,513/-, Revenue has determined the loaded value to Rs 15,78,935/-. The total case which involves undervaluation is not more than 10% of the value of the goods under importation. 
• From the order of the Hon’ble Calcutta High Court in the case of CC (Preventive), West Bengal Vs India Sales International – 2009 (241) E.L.T. 182 (Cal.) the issue under consideration was in respect of the absolute confiscation of the goods, or allowing the same to be released on payment against the redemption fine. Hon’ble High Court permitting the release of the goods on payment of redemption fine of Rs 8 lakhs which is about 8 % of the value of the confiscated goods. 
• Further, as per Rule 128A there is sufficient power vested in the Commissioner (Appeal) to confirm, modify or annul any decision or order appealed against. 
• Hence the tribunal did not find any merits in the submissions of the revenue and dismissed the appeal.