hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CUSTOMS APPEAL NO. 73 OF 2009 The Commissioner of Customs (Imports) ... Appellant Versus Shri. Anand Mahindra ... Respondent Mr. R. Ashokan for the appellant. Mr. Sujay N. Katawala i/by Ms. Barsha Parulekar for Respondent. CORAM : F.I. REBELLO & D.G. KARNIK, JJ. DATED : SEPTEMBER 23, 2009 P.C. The Revenue is in appeal against the order dated 13.2.2008. The learned tribunal by that order upheld the order of confiscation for contravention of the provisions of Section 111(bh) and reduced the redemption fine from Rs. 25 lacs. To Rs. 5 lacs. keeping in view the fact that the vessel was for the personal use of the appellant before it. The learned tribunal has opined that imposition of penalty is not mandatory and it depends upon the facts and circumstances of each case and accordingly set aside the order of penalty in the sum of Rs. 5 lacs. We admit the appeal on the following question : “(a) Whether in the facts and circumstances of the case the Hon’ble CESTAT is right in partly setting aside the; Order-in-Original dated 28.8.2006 and reducing the redemption fine from Rs. 25,00,000/- to Rs.5,00,000/- and also setting aside the personal penalty imposed upon the importer for various offences committed U/s. 111(d), (f) and (m) and U/s. 112(a) of the Customs Act, 1962?” A few facts may be noted. The vessel was already within the Indian territorial waters. The respondents herein purchased the same. The tribunal also noted that if the respondent had applied for licnece, the D.G.C.T. would have granted the same. Secondly the yacht was for personal use of Respondent herein and in these circumstances, the tribunal was pleased to reduce the amount of fine. Section 125 uses expression as such fine as the said officer thinks fit. It is no doubt true that the A.O. Had considered the material before him and imposed the fine in the sum of Rs. 25 lacs. The tribunal considering the factors relevant for consideration in imposition of fine arrived at the conclusion that the find imposed was harsh and accordingly reduced the same. In our opinion, it cannot be said that the said finding and consequent reduction of redemption fine by the tribunal is without jurisdiction or discloses non application of mind. In our opinion, therefore, we find no reason to interfere with the order passed by the tribunal in so far as redemption fine is concerned. We then come to the issue of penalty. Admittedly after the IGM was permitted to be amended, that by itself cannot be sufficient, as the respondents herein would require the import licence. The tribunal has noted that if the respondents herein had applied for licence, that ordinarily could have been granted. Considering that there is no prohibition on import of yacht. In these circumstances, there is a breach. The tribunal therefore, could not have, considering the language of sectio0 112, done away with the penalty. It was within its discretion to impose penalty not exceeding the value of the goods or Rs. 5,000/- which is greater. In the instant case, we find that considering that the vessel was already within the Indian territorial waters when IGM had been granted and only import licence had not been asked for, there is a technical breach, ends of justice will be met if the penalty of Rs. 50,000/- is imposed. Considering the above, the impugned order of the tribunal to the extent of setting aside penalty is set aside. The appeal of the revenue to that extent is partly allowed with the reduction of penalty from Rs. 5 lacs. to Rs. 50,000/-. On behalf of the respondent, the learned counsel states that the penalty as earlier ordered has been paid. The respondents if the amount is so paid, to deduct the amount and refund the balance amount. If the amount is not paid, respondents are directed to pay the same. The learned counsel also points out that they had paid redemption fine as already ordered. Considering that we have upheld the order of the tribunal. The appellants are directed to return the balance amount according to law. (D.G. KARNIK,J.) (F.I. REBELLO,J.)