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2014 (5) TMI 1010 - AT - CustomsConfiscation of goods - Redemption fine - mis-declaration of Present Market Value (PMV) and FOB value - claim of abnormally high DEPB credit - Right to get goods released on redemption fine payment - Held that:- appellant, as a matter of right, cannot claim release of the goods on payment of redemption fine and duty. Even though gold as such is not a prohibited item and can be imported, such import is subject to lot of restrictions including the necessity to declare the goods on arrival at the Customs Station and make payment of duty at the rate prescribed. There is no need for us in this case to consider the conditions on which import is permissible and whether the conditions are satisfied because the appellant attempted to smuggle out the goods by concealing the same in emergency light, mixie, grinder and car horns etc. and hence the goods so brought is prohibitory goods as there is clear violation of the statutory provisions for the normal import of gold. Further, as per the statement given by the appellant under Section 108 of the Act, he is only a carrier i.e. professional smuggler smuggling goods on behalf of others for consideration. Since the exporter realized the value declared as FOB value it has to be taken as correct This circular is silent on the manner in which PMV is to be ‘considered for the purpose of allowing credit’. Since the circular is a continuation of earlier circular it is reasonable to conclude that the consideration is to ensure that credit given does not exceed 50% of PMV as ascertained. At any rate this change is after the export of goods on 17-08-2000 and cannot be made applicable to this this case - In the process of re-determining the eligible DEPB credit the appellant seems to have suffered beyond what was prescribed under law - in the matter of issue of SCN, the procedure prescribed vide circular 79/98-Cus dated 22-10-98 as amended by Circular dated23/99-Cus dated 11-05-99 was not followed - confiscation of goods and redemption fine and penalty imposed is set aside - Decided partly in Favour of assessee.
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