2. These three appeals involve identical question as such they are being disposed of by common order, though the appellants are different parties.
3. The appellants are said to be High Seas buyers of Heavy Melting Scrap which is freely importable goods prior to amendment of Foreign Trade Policy. The Foreign Trade Policy Public Notice No. 16/2004-09 dated 15.10.2004 as amended by P.N. No. 18/2004-09 dated 21.10.2004 & P.N.No. 30/2004-09 dated 27.12.2004 & P.N. No. 51/2004-09 dated 31.10.2005, as per Para 2.32 of Hand Book of procedures (Vol.I), in case of import of metal scrap in un shredded, compressed or loose form, the exporter shall furnish following documents to the Customs at the time of clearance of the goods - i) Pre-shipment inspection certificate as per the format in Annexure I to Appendix 28 from any of the Inspection & Certification agencies given in Appendix-28 to the effect that: a) the consignment does not contain any type of arms, ammunition, mines, shells, cartridges, radio active contaminated or any other explosive material in any form either used or otherwise.
waste/scrap/seconds/defective as per the internationally accepted parameters for such a classification.
c) copy of the contract between the importer and the exporter stipulating that the consignment does not contain any type of arms, ammunition, mines, shells, cartridges, radio active contaminated, or any other explosive material in any form either used or otherwise.
4. In the present cases, importer did not furnish Sale Contract document, but however furnished Pre-shipment certificate which was not issued by the specified agency. On due examination of the goods, in the presence of the Police Officials, no incriminating material is found in the consignment. This is not in dispute. The Commissioner of Customs found that the goods are liable for confiscation under Section 111(d) of Customs Act, 1962 on the ground that the appellants have not produced Pre-shipment Certificate. Therefore, the Commissioner of Customs, Kandla in all the cases ordered confiscation of the goods on payment of redemption fine equivalent to the 10% value of the goods approx. and demand of appropriate duties. Further, imposed penalty equivalent to 5% value of the goods under Section 112 of the Customs Act, 1962.
5. The appellants in these appeals first of all dispute about the confiscation of the goods and also imposition of penalty under Section 112 of the Act. Their contention is that no important material is found in the consignment of the goods which is primary objection of the amendment brought in the Foreign Trade Policy as such the goods ought to have been confiscated despite production of pre-shipment certificate. Mere because the said certificate was not obtained from the specified authority impact remains one on the same as consigned goods did not contain any incriminating material. The purpose and object of the pre-shipment certificate is to ensure the authorities concerned that the consignment is free from other objects such as Fire Arms, ammunition etc. since it is a case of procedure lapse, the authorities concerned can not take such deterrent action and order confiscation and impose heavy fine and penalty. It is brought to my notice that in one of the similar cases the Commissioner has followed certain principle in imposing redemption fine and penalty proportionate to the level of violation committed. Lastly it is contended that no penalty is imposable as per the decision Electronik Lab v. CC (P), Mumbai 6. The ld. DR in his arguments support the impugned order passed by the learned Commissioner.
7. After having heard both sides at length and further having regard to the procedure laid down in the Amended Foreign Trade Poicy, it is to be observed that where the provisions of law directs particular act should be done in particular fashion and manner, it is to be followed scrupulously. There can not be any exceptions or deviations as per the individual choice of the importer. There can be no exemption for them in producing the required documents in a particular format as specified under the Trade Policy. Therefore, I am of view that there is nothing erroneous or illegality in the impugned orders passed by the learned Commissioner in all the three cases. Further imposition of redemption fine and penalty appears to be disproportionate to the level of offence committed, as such needs to be modified. In my considered view 5% of value of the costs of goods towards redemption fine and 2.5% to the cost of the goods value, towards penalty would meet the ends of justice. I am also view that the decision cited supra by the ld.counsel for the appellants is not applicable to the present appeals in setting aside the penalties. Because the appellants are expected to have knowledge of the goods are being imported and procedure to be followed thereon. Even otherwise there is nothing on record to prove their innocence. Therefore, penalty is very much imposable. Accordingly in all three appeals redemption fine is imposed equivalent to the 5% value of the goods and whereas the penalty equivalent to the 2.5% value of the goods except these modification the impugned orders in all three appeals stands, order accordingly.