TMI Blog1999 (9) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... o imposed penalty of Rs. 15,00,000/- each on both the appellants under Sections 112(a) (b) of the Customs Act. 2. Heard Sri B. Kumar, learned Senior Advocate and S/Shri Satish Sundar and Haja M. Gisti, learned Advocates for the appellants and Sri S. Kannan, learned DR. 3. The learned senior Advocate submits that the facts of the case briefly are that on 29-10-1995, the appellant Sri Jalal Ifteqar landed at Hyderabad airport carrying 3260 numbers of spectacle frames in three suitcases. He had declared that he had brought 1500 spectacle frames and after Customs examination the quantity found was 3260 numbers. In his statement recorded on 29-10-1995, Sri Ifteqar submitted that the spectacles had been brought for one Sri Inayatullah, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Hargovind Das K. Joshi and Others v. CCE Others as reported in 1992 (61) E.L.T. 172 (S.C.) = 1987 (2) SCC 230, wherein the Hon ble Apex Court modified the decision of the Hon ble Tribunal upholding the adjudication order passed by the Additional Collector of Customs regarding absolute confiscation directing that the original authority who addressed himself to the discretion available in law to give an option to the appellants to pay fine in lieu of confiscation, as the item namely zip fasteners would at present be imported freely not being banned items. He submits that in the second place since the passenger declared that he had brought with him 1500 numbers of spectacle frames and because spectacle frames in the Middle East ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion value, which value was also claimed by the present appellants. This claim of one dollar per piece was subsequently explained by Sri Md. Inayatullah as pertaining to further negotiations with the foreign supplier. The learned Sr. Counsel submits that whether the transaction price is taken in terms of the said proforma invoice, if not even lower as claimed by the appellants, it would certainly not have been Rs. 25 lakhs approximately, which is more than 300% of the declared transaction value, as evidenced by the said fax proforma invoice. He further submits that in the Order-in-Original impugned no reasons have been given as to why the said evidence has been disregarded. Therefore, the learned Sr. Advocate prays that the goods be allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at simply because they were not bona fide baggage and they should be absolutely confiscated under the Act. We find on a perusal of the said decision that the Government have relied on the decision of the Hon ble Delhi High Court in the case of Smt. Jasvir Kaur v. U.O.I. in CW/1399/91-Del. dated 25-11-1991. However, we find that in that case the Hon ble High Court had examined the question of import of smuggling of gold into the country. We find that the gold then, as now, was an item which was notified under Section 123, therefore, if the gold was absolutely confiscated those facts would not be pari materia to the facts of the case in this case, where it is not disputed that spectacle frames are not notified under Section 123 of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, not baggage items, therefore, the passenger had technically violated the Baggage Rules in bringing them into India as a part of his baggage. However, we also note that he had declared the same as 1500 numbers to the Customs authorities and has also given a plausible explanation that since the spectacle frames are marketed in pairs in the Middle East, therefore, his declaration found short by 50% approximately. We find that the Order-in-Original impugned has not discussed clearly these facts and submissions before imposing high penalty of Rs.15 lakhs on each of the appellants. On this count, we find that the order impugned is a non-speaking order. 7. With respect to the valuation angle submitted by the learned Senior Counsel, we find t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n fashion in the Middle East and therefore, sold at their prices mutually negotiated upon as a stock lot which was lying with the foreign supplier from the year 1991, and there is no discussion about these facts in the order impugned. On this count also, the order impugned is a non-speaking order. 8. In view of the aforesaid findings, we are of the considered view that the matter has to be remanded to the original authority for de novo consideration in the light of our observations noted above. The Order-in-Original impugned is, thus, set aside and the matter remanded to the original authority for de novo consideration, after giving full opportunity of hearing to the appellants. Since the matter is already eight years old, the said origin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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