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2015 (9) TMI 971 - CESTAT KOLKATA

2015 (9) TMI 971 - CESTAT KOLKATA - 2015 (325) E.L.T. 788 (Tri. - Kolkata) - Confiscation of improperly imported goods - Chinese mobile phones – Appeal was filed against order of Commissioner(A) upholding order confiscating 3,437 number Chinese mobile phones under Section 111(d) & (i) of Customs Act, 1962 and also imposed penalty upon appellant – Held that:- All persons whose names were found on boxes seized have either disowned seized goods or were not found –Disposal of goods through E-auction .....

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Sale proceeds pertaining to remaining mobile phones is also ordered to be released to appellant – Further Customs duty cannot be demanded from appellant as it is case of town seizure and date/time of inspection is not known to determine rate of duty, exchange rate and value of goods – Appellant being transporter cannot be expected to know all and no such statement exists that he was aware of smuggled nature of seized goods – In view of observations, penalty imposed is set aside – Decided in fav .....

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pheld Order-in-Original No. 51-Cus/ADC/Hqrs./2013 dated-30/09/2013, passed by the Adjudicating authority, confiscating 3,437 number Chinese mobile phones under Section 111(d) & (i) of the Customs Act, 1962 and also imposed a penalty of ₹ 4,00,000/- upon the appellant. 2. Sri K.P. Dey ( Advocate) appearing on behalf of the appellant argued that a consignment of 3,437 mobile phones of Chinese origin was seized by the Revenue on 20/09/12 from one SLR Van which was under lease contract of .....

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. That a penalty of ₹ 4.00 Lakh was imposed upon the appellant vide Section 112 (b) of the Customs Act, 1962. That an appeal filed by the appellant with Commissioner (Appeal) was rejected by the first appellate Authority. It was his case that Commissioner (Appeal) has wrongly decided that appellant cannot be given redemption as he is not the owner and strongly argued that as per the provisions of Section 125 of the Customs Act, 1962 the person from whose possession the goods are seized is .....

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knowledge. That once Department has sold the confiscated goods in E-auction, it is implied that statutory provision of Notification No. 44 (re-2000)/1997-2002 DATED-24/11/2000 was not absolute prohibition & redemption could be allowed under Section 125 of the Customs Act, 1962. 2.2 Regarding requirement of IMEI No. under Notification No. 14/2009-14 dated 14/10/2009 is concerned, Ld. Advocate argued that there was not a whisper of this prohibition in the show cause notice and adjudicating aut .....

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ise reported in 2011 (301) ELT 150 (Tri-Ahmedabad) 2.4 Regarding imposition of penalty vide Section 112(b) it was argued that no penalty can be imposed on the appellant as he had no knowledge that goods were liable to confiscation. 3. Shri S.N. Mitra (A.R.) appearing on behalf of the Revenue argued that disposal of goods involved in this appeal was made by the department after intimating the Advocate of the appellant. It was his case that there was no specific direction from the Bench regarding .....

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rds. Appellant is the transporter of the goods involved in these proceedings which were later confiscated without giving redemption option to the appellant when he was put to notice as to why the seized goods should not be confiscated. First para on page-5 of the show cause notice dated-28/02/2013 indicates that some of the persons whose names were appearing on the boxes of the seized goods did import Chinese mobile cells through Air Cargo Complex, Samshabad, Hyderabad from June 2011 to August, .....

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orce, and shall, in the case of any other goods, give to the owner of the goods or, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit. 4.1 In view of the above provisions of Section 125(1), appellant had a claim to ask for redemption even if he is not the owner of the seized/confiscated goods and has also not imported the seized goods. This view is also fortifie .....

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was allowed to the carrier. In the instant case the five persons are not the owner of the gold as already discussed (supra). The Department s entire case is based on the statement of the appellant wherein he has deposed that he had brought the gold to earn profit and the profit is not to be shared with five persons. Therefore the above-cited case is not applicable to the facts of the case. The department has also placed reliance on Tribunal s Order No. 1980 to 1995/ 09 (supra) which in turn reli .....

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er is not known, the person from whose possession or custody such goods have been seized. Undoubtedly, the gold has been seized from the possession of the appellant. Therefore, the aforesaid contention of the Department is not sustainable. 5. On the issue of violation of condition of Notification No. 14/2009-14 dated 14/10/2009, it is the case of the appellant that the same was not the subject matter of the show cause notice dated-28/02/2013. On perusal of the case records Bench finds it so. It .....

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tions specified vide Notification No. 44 (RE-2000)/1997-2002 dated-24/11/2001. 388 pcs. of such mobile phones were thus liable to confiscation. As the defect was curable, therefore, such violation cannot be considered as an absolute prohibition under Section 125 of the Customs Act, 1962. As the impugned goods have already been disposed off by the department, therefore, the sale proceeds with respect to 388 pcs. are ordered to be released to the appellant after imposing and adjusting suitable red .....

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lowing observations in para 5 & 6 of this order are made as follows: 5. The main issue involved in this appeal filed by the Revenue is whether, at the time of granting an option for payment of fine in lieu of confiscation for seizures in an area other than the Customs area (normally called as Town Seizure), Customs duty is required to be paid by the owner of the goods. In the case of town seizures, the date on which the seized goods are brought into India, is not available. As per the provis .....

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ds minus duty. Once the element of Customs duty payable on the confiscated goods is not ascertainable at the time of redemption, it is presumed that the entire duty payable on the confiscated goods stands included in the value of the confiscated goods and accordingly, no reduction on account of duty element can possibly be allowed by the adjudicating authority granting an option of payment of fine in lieu of confiscation. That is why, in the case of town seizures, the value/price of confiscated .....

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leared for home consumption, includes any owner or any person holding himself out to be the importer. 6. From the above definition of importer , it is evident that in relation to any goods only between their importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out of be the importer. So, the word importer has to be read in the context of the time between their importation and till they are cleared for home consumption, which is the .....

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