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2014 (5) TMI 21 - HC - CustomsSmuggling of goods – Confiscation of goods - Notice of demand of duty - Section 28 or 125 - Whether noticee is not a person chargeable with duty u/s 28 of the Customs Act, 1962 though it had been proved that the noticee was actually dealing with such smuggled goods - Held that:- Section 28 applies to a case where the goods are imported by an importer and pays duty in accordance with law - If such duty is not paid, then a notice of demand of duty u/s 28 on the person chargeable to duty lies - Section 125(2) also authorizes such competent authority to demand any duty payable on such goods which is payable in respect of such goods under the Act - Therefore, the notice to be issued for payment of duty u/s 28 and u/s 125(2) is not identical - They fall into completely different areas - In the case of a notice demanding duty u/s 125(2) firstly the goods should have been confiscated and the duty demandable is in addition to the fine payable u/s 125(1) in respect of confiscated goods - Therefore, the material on record discloses that the assessee is not the person who imported the goods - He is not the owner of the goods - He was only a dealer of the smuggled goods and therefore, there is no obligation cast on him to pay duty and therefore, the notice issued u/s 28 to the assessee is unsustainable as he is not the person who is chargeable to duty under the Act. Insofar as application of Section 125(2) is concerned, admittedly, no goods are seized - Once the goods are not seized, consequently, there is no confiscation and in the absence of a confiscation, payment of duty chargeable from the person who is the owner or from whose possession does not arise - Hence, Tribunal was justified in upholding the order passed by the Adjudicating Authority who has held that no duty is leviable against the assessee as he is neither the importer nor the owner of the goods or was in possession of any goods - Accordingly, Decided against the revenue.
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