Judgment:
1. By the present appeal, the Revenue has agitated against the Lower amount of penalty and redemption [fine], in respect of "Bright Yellow Crude Sulphur". The facts of the case in brief are that, the respondents herein imported 3000 MTs of Sulphur. In the Bill of Entry, it was described as "Bright Yellow Crude Sulphur". However, along with the Bill of Entry, the respondents herein filed a letter describing that the Bright Yellow Crude Sulphur was in powder form. This letter assumes importance inasmuch as under Notification No. 7/92, only Sulphur in powder form was exempted from levy of CVD. The Department, therefore, alleged that the description of the goods was incorrect and the claim of exemption under Notification No. 7/92 was made with the intention to evade payment of duty. The Collector of Customs, after considering the various submissions made, confiscated the goods imported and allowed them to be redeemed on payment of a fine of Rs. 25,000/- and a penalty of Rs. 5,000/-.
2. Shri A. K. Madan, learned SDR appearing for the Revenue submits that the value of the imported goods was Rs. 49,22,489/- and the duty involved thereon was of the order of Rs. 7,38,726/-. He submits that the goods were described incorrectly only to avail the benefit of Notification No. 7/92. He submits that since the intention of evading duty was clear and was rightly held so by the adjudicating authority, the imposition of a penalty of Rs. 5,000/- and redemption of the goods on payment of a fine of Rs. 25,000/- was very low, looking to the facts specifically that an attempt to evade duty was clear inasmuch as though the description in the Bill of Entry was recorded as Bright Yellow Crude Sulphur. However, a letter was simultaneously attached with the Bill of Entry claiming that the goods were in powder form. Learned SDR, therefore, prayed that in view of the fact that there was clear intention to evade payment of CVD, the redemption fine as well as penalty should have been commensurate with the value of the goods, duty involved therein as also the severity of the offence and, therefore, prays that the amount of redemption fine as also the penalty may be enhanced.
3. Shri Ashok Sagar, Learned Counsel for the respondents herein submits that the respondents are a small importer; that the crude sulphur is imported in ship loads comprising 15,000 to 20,000 MTs; that the respondents imported only 3,000 MTs; that the major importer in the instant case was M/s. Dharmsi Morarji who had declared the goods as Bright Yellow Crude Sulphur in powder form; that they also followed suit and declared the same as crude Yellow Sulphur in powder form. He submitted that the respondents herein were actual users and were availing Modvat credit of duty equivalent to the CVD paid on imported Sulphur. Learned Counsel, therefore, submitted that there could be no intention to evade payment of duty as the entire amount of duty paid as CVD would have been availed of in the form of credit for payment of duty on the manufactured product by them. He submits that considering all these facts, the learned adjudicating authority considered it sufficient and fit to allow redemption of the goods on payment of a fine of Rs. 25,000/- and imposition of penalty of Rs. 5,000/-.
4. Heard the submissions of both sides. There is no dispute that there was misdeclaration. Since there was misdeclaration, the adjudicating authority has rightly confiscated the imported goods. The only dispute before us is that redemption fine and penalty should have been high as contended by the Revenue. We find that the learned adjudicating Collector has recorded reasons for imposing the fine as well as penalty. He considered that it was the first case in which the respondents herein were confronted with the problem and that they were actual users of the raw material imported from abroad and, therefore, felt that a lenient view was warranted in the case. We also find that the respondents herein produced before us the Bill of Entry showing that they were the actual users and use the imported Bright Yellow Crude Sulphur for further manufacture of goods and were entitled to the benefit of credit on inputs under the Modvat scheme equal to the amount of CVD paid on the imported goods. We find that the adjudicating authority had taken the facts into consideration and came to the conclusion after judging the reasons therefor. The quantum of redemption fine and penalty depends on the facts and circumstances of a particular case. The only thing that is to be seen in such cases, whether the circumstances of the case were such as to impose a higher fine or higher penalty or redemption fine. Looking to the facts and circumstances of the present case, we find that the adjudicating authority has given sufficient reasons to impose a penalty of Rs. 5,000/- and allowing the goods to be redeemed on payment of a fine of Rs. 25,000/-. We find that in the circumstances of the case, this was reasonable. In the circumstances we do not see any reason to interfere with the order of imposition of penalty and allowing the goods to be redeemed on payment of a fine as indicated in the impugned order. In the circumstances, the impugned order is upheld and the appeal is rejected.