Judgment:
1. The appellants had imported 4850 pieces of video cassettes from Singapore and filed two Bills of Entry dated 7-12-98 and 21-12-98. The goods were declared as "1/2" (12mm) blank video cassettes suitable for S-VHS Editing application" and the unit price declared was US$ 0.55 per cassette. On the basis of this declaration, the Bills of Entry were assessed and clearance permitted under OGL. Subsequent investigations into the import revealed that the video cassettes were of the 'VHS' type which required specific licence for import. The General Manager of the appellants, in his statement under Section 108 of the Customs Act, admitted that they had imported "Samsung VHS video cassettes" but declared the same as suitable to be played on 'S-VHS type VCR' for the purpose of clearance under OGL. The appellants could not produce any import licence. The investigations also indicated the correct unit price of the video cassettes to be US$ 0.80. The General Manager accepted this higher value and agreed to pay the differential duty along with fine and penalty. The Customs authorities, in the absence of valid import licence, proposed to confiscate the goods under Section 111(d) and (m) of the Customs Act as also to impose penalty on the importer under Section 114A of the Act. The party waived SCN and also paid an amount of Rs. 71,000/-. After giving a personal hearing to them, the Commissioner of Customs passed an order (a) confiscating 40 cassettes under Section 111(d) of the Customs Act with option for redemption on payment of fine of Rs. 1,400/-; (b) imposing a fine of Rs. 1,99,000/-in lieu of confiscation of the remaining cassettes which were not available for confiscation; (c) demanding differential duty of Rs. 59,882/- under Section 28(2) of the Customs Act along with interest; (d) imposing a penalty of Rs. 59,882/- on the importer under Section 114A of the Act and (e) imposing another penalty of Rs. 25,000/ on them under Section 112(a) of the Act. The payment of Rs. 71,000/-was appropriated towards the above demands.
2. After hearing both sides and considering their submissions, we find that the challenge against the demand of duly and the fine of Rs. 1.400/- has not-been pressed. Ld. Consultant, however, has reiterated the importer's grievance against the fine of Rs. 1,99,000/- and the penalties. It has been contended that where the goods are not available for confiscation, they are not redeemable and hence there is no question of imposition of redemption fine. We have to accept this contention and, accordingly, fine of Rs. 1,99,000/- is set aside.
Penalties have been imposed under Sections 112(a) and 114(A) on the appellants. The appellants have not challenged the confiscation of 40 cassettes, nor the quantum of fine imposed in lieu of such confiscation. In the circumstances, a penalty under Section 112(a) cannot be resisted. Hence we uphold the penalty of Rs. 25,000/- imposed on the importer under Section 112(a). As per one of the provisos to Section 114A, any penalty cannot be levied under this provision, where a penalty has been levied under Section 112 or under Section 114. We have already upheld the penalty under Section 112. Hence we set aside the penalty of Rs. 59,882/-imposed under Section 114A.3. The impugned order will stand modified to the aforesaid extent. The appeal is disposed of.