- (1.) TWO several consignments of Clove were imported by the appellants. The first consignment arrived on 12th May, 1993 and the second consignment on 19th May, 1993. So far as the first consignment is concerned the Collector of Customs by his order dated 21st May, 1993 allowed release of the consignment upon imposition the redemption fine. He held as follows : - "Taking the true retail price at Rs. 86/ - per kg. and giving therein a wholesale quantity discount of 15%, the wholesale market price comes to Rs. 77.25 per kg. The CIF price of the goods is Rs. 21.50 per kg. on which 85% duty equal to Rs. 1,845/ - shall be payable. In addition to this sales tax and other expenses including landing, loading and unloading charges and all other charges equal to about Rs. 21/ - per kg. is to be added to it. These expenses altogether come to around Rs. 61/ - Rs. 62/ - per kg. Indicating a profit of at least Rs. 10/ - per kg. which is required to be mopped up to the maximum extent prior to release of goods".
(2.) HE therefore imposed a redemption fine of Rs. 6,50,000/ - and Rs. 5,80,000/ - against B/E Nos. 497 and 498 dated 12 -5 -1993 respectively. The first consignment was cleared on that basis. The second consignment was also adjudicated along with the first consignment. It was adjudicated on 15th of June, 1993 by the Additional Collector of Customs. The Additional Collector of Customs in his order dated 15th of June, 1993 observed as follows : - "I have carefully gone through the records of the case. The goods require an import licence. Since the importer has failed to produce the same, the goods become liable for confiscation under Section 111(d) of Customs Act, 1962 and the importer becomes liable for penalty under Section 112 of the said Act, I, therefore, impose a redemption fine of Rs. 8,00,000/ - for each of the five bills of entry and impose a penalty of Rs. 80,000/ - on each of the five consignments. If the importer desires to clear the goods he should do so within 15 days of the receipt of the order on payment of duties and fine and penalties as imposed above".
(3.) IN his said order, the Additional Collector has not given any calculation as to how the redemption fine was imposed in respect of the second consignment. It appears that on 18th June, 1993 the Collector of Customs exercised his power under Section 129B(2) of the Customs Act, 1962 for filing an application to the Collector (Appeals) in terms of Sub -section (4) of Section 129B. The said order by the Collector which is found in the records is as follows : - "On examination of the above mentioned order in terms of Section 129D(2) of the Customs Act for the purpose of satisfying myself as to the legality and propriety of imposing 100% (approx) fine in lieu of confiscation, I observe that redemption fine of Rs. 8,00,000/ - (eight lakhs) under Section 125(1) of Customs Act, 1962 on each of the consignments covered by the five bills of entry has been imposed due to inadvertence without ascertaining the actual margin of profit, which is the most important legal criteria for determining the quantum of fine under the aforesaid provision of the Act. On the basis of market price prevailing on the date of adjudication, the margin of profit works out to 250% of c.i.f. value against 100% (approx.) taken by the Addl. Collector of Customs as a basis for imposition of fine. In view of the foregoing, the quantum of fine imposed by Addl. Collector of Customs is not proper and legal. Hence 1 direct that an application be filed to the Collector (Appeals) in terms of Sub -section (4) of Section 129D of the Customs Act, 1962 with prayer for enhancement of the fine in view of the aforesaid grounds. He should also seek stay of operation of the said adjudication orders during the pendency of appeal. I also authorise Addl. Collector (A) to file this application to Collector (Appeals) in terms of Sub -section (4) of Section 129D of the Customs Act." The said application was filed before the Collector (Appeals) on 22nd June, 1993. A Stay application was also filed. It is noted in the file by the Appraiser. Appeal Unit that the Collector (Appeals) has expressed "his kind desire that he wants to hear the appeal in respect of stay application on tomorrow, the 23rd June, 1993". A note was put up before the Collector (Appeals) wherein it has been noted that prayer for "immediate grant of stay of due operation of the order and to enhance the quantum of redemption fine from 100% to 250% of the CIF value of the goods", be allowed. The file contains the following noting also : "As far as interim stay order is concerned, the Collector (A) may like to pass an ex parte order of stay against the said adjudication of Additional Collector. The said order, on merits, may be quashed/set aside/upheld after hearing the appeal". On that note the Collector (Appeals) made an order on 23rd June, 1993 as under : "As prayed stay is granted to the operation of the order passed by the Additional Collector (Customs) with immediate effect". The order which was communicated to the appellant is as follows : - "The Additional Collector of Customs, Appraising, Customs House, Calcutta, has filed an appeal under Section 129D(4) of the Customs Act, 1962 against the adjudication order No. 33/93 dated 15 -6 -1993 seeking enhancement of quantum of redemption fine imposed by that impugned order, taking into consideration the criteria laid down under Section 125(1) ibid. The appellant has also submitted a petition in which grant of stay upon the operation of the impugned order pending disposal of the appeal, is sought for. After careful considerations of the case, I find that there is sufficient force in the grounds of appeal as put forward by the appellant. As such, I grant stay of operation of the order number 33/93 dated 15 -6 -1993 appealed against; till the disposal of the appeal. The stay petition is accordingly allowed. The appeal proper shall be heard in due course". The appellant petitioner has challenged the aforesaid order passed by the Collector (Appeals) granting an ex parte ad interim order. He has also challenged the determination made by the Additional Collector by the order dated 15th June, 1993 imposing redemption fine of 100% of the CIF value.;