CUSAP.No.5 of 2011 (O&M) #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CUSAP.No.5 of 2011 (O&M) Date of Order: 15.9.2011 Commissioner Custom (Preventive) Custom House, Amritsar .....Appellant Vs. M/s J.K. Impex, # 4743/3, Roshanara Road New Delhi .....Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. H.P.S Ghuman, Advocate for the appellant. HEMANT GUPTA, J (ORAL) C.M.No.18105-CII of 2011 In the instant application filed under Section 130 of the Customs Act, 1962 (hereinafter to be referred as “the Act”), appellant has prayed for condonation of 309 days delay in filing the appeal. For the reasons stated in the application, which is supported by an affidavit, the same is allowed. Delay of 309 days in filing the appeal is condoned. C.M.No.18106-CII of 2011 In the instant application filed under Section 151 CPC, appellant has prayed for condonation of 767 days delay in re-filing the appeal. For the reasons stated in the application, which is supported by an affidavit, the same is allowed. Delay of 767 days in re-filing the appeal is condoned. CUSAP No.5 of 2011 Revenue is in appeal under Section 130 of the Act against the order dated 7.9.2007 (A.2) passed by the Custom, Excise and Service Tax CUSAP.No.5 of 2011 (O&M) #2# Appellate Tribunal, Principal Bench, New Delhi (for short “the Tribunal”) and the order dated 14.2.2007 passed by the Commissioner (Appeals) , Custom & Central Excise, Ludhiana/Chandigarh (for short “the Commissioner (Appeals)”). Respondent herein submitted Bill of Entry No.110664 dated 26.12.2006 for clearance of 89 Pcs of 'Old & Used untested Incomplete Photocopier Machines Incorporating Optical Systems'-Low duty & Medium duty (for short “the goods”). The respondent failed to submit the Overseas Chartered Engineer Certificate as regards value, year of manufacture and residuary life of the goods, therefore, such goods were liable to confiscation under Section 111 (d) of the Act. The Adjudicating Authority found that the goods were liable for confiscation and the respondent was also liable to penal action under Section 112 of the Act. The Adjudicating Authority gave option to the respondent to redeem the goods on payment of fine, which was availed by the respondent. Aggrieved against the said order, the respondent filed an appeal. The Commissioner (Appeals) vide order dated 14.2.2007 upheld the charging of duty on the assessed value and confiscation of the goods but reduced redemption fine inter alia on the ground that the respondent has not mis-declared the description of goods and that the order of the Adjudicating Authority does not disclose mens rea of any high degree. Such order passed by the Commissioner (Appeals) has been affirmed by the Tribunal. Still aggrieved, the Revenue is in appeal. Learned counsel for the appellant has relied upon a judgment of this Court reported as Jaswant Traders v. Commissioner of Customs 2009(235) E.L.T 33 (P&H) to contend that the mens rea was not required CUSAP.No.5 of 2011 (O&M) #3# or contemplated as the import of the goods was in violation of the Import Policy. It is contended that the redemption fine could not have been reduced by the Commissioner. We do not find that the aforesaid judgment is, in any way, helpful to the argument raised by learned counsel for the appellant. It has been held in the cited judgment that for confiscation, mens rea is necessary. It has been held that the quantum of penalty is within the discretion of the authorities. In the present case, the Commissioner(Appeals) upheld the confiscation but reduced the redemption fine. In the present case, the order of confiscation has been maintained. Section 125 of the Act provides that the Officer adjudicating if thinks fit, in the case of any goods, in the facts of each case, shall, give an option to the owner of the goods to pay in lieu of confiscation such fine, which shall not exceed the market price of the goods confiscated. Section 125 of 1962 Act contemplates the maximum amount of redemption fine and not the minimum. Therefore, taking into account the facts of the case, the Commissioner (Appeals) has rightly exercised its jurisdiction while reducing redemption fine and personal penalty. The same cannot be said to be illegal or unwarranted raising any substantial question of law in the present appeal. Dismissed. ( HEMANT GUPTA ) JUDGE September 15, 2011 ( JASWANT SINGH ) manoj JUDGE