TMI Blog2015 (12) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... t mention details of individual mobile phones. Once the goods are in the open market, it is the onus of Revenue to establish with sustainable evidence that these goods were smuggled in any sense other than that they did not carry MRP. We find that Revenue has not been able to discharge this onus. Even if the appellants had not produced any Bills of Entry to show the licit import of the impugned goods, they would not have been worse of because it is Revenue's onus to establish smuggled nature of goods and there is no evidence in the Show Cause Notice or in the impugned order which even prima facie discharged that onus. Valuation - It has clearly been brought out that no such MRP was printed on the impugned mobiles and therefore their import and clearance were in violation of provisions of Exim policy which rendered them liable to confiscation under Section 111(d) ibid. In the case of Pacific India Trade Concern Vs. CC (Prev) [2014 (3) TMI 675 - DELHI HIGH COURT], Delhi High Court held that in case of goods which required MRP to be declared on the goods, non-declaration of MRP results in violation of Foreign Trade Policy and rendered the goods liable to confiscation. Twenty n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al:- (a) M/s. BM Technologies Company (appellant Shri Nitin Bansal and Shri Dharmander Bansal) Rs.5,00,000/-. (b) Shri Jasbir Singh Rs.3,00,000/- (c) Shri Vimal Shukla Rs.1,50,000/- (d) Shri Saurabh Agarwal Rs.50,000/- (e) Shri Pradeep Kumar Rs.2,50,000/- (iv) Penalty was imposed under Section 112 of the Customs Act, 1962 upon each of the appellants as indicated below:- (a) Shri Virendra Pandey Rs.2,00,000/- (b) Shri Arun Kumar Gupta Rs.3,00,000/- (c) Shri Yogesh Kumar Gupta Rs.3,00,000/- (d) M/s. Hari Om Couriers Rs.5,00,000/- (e) Shri Nitin Bansal Rs.10,00,000/- (f) Shri Dharmender Bansal Rs.10,00,000/- (g) M/s. Gold Manner Overseas Rs.10,00,000/- (h) M/s. Waho Wireless Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form may be sold to the ultimate consumer. 4. On examination by Revenue, it was found that on seized cartons of mobile phones, there was no name and address of the importer and also the individual packets of mobile phones did not carry MRP in any manner viz., in the form of print/sticker of MRP / RSP, which indicated that the aforesaid mobile phones of Chinese origin and other foreign origin goods contained in 77 cartons were illicitly imported from Nepal into India through unauthorised routes contravening to the provisions of Notification No.63/94-CUS(NT), dated 21.11.1994 as amended issued under Section 7(1)(c) of the Customs Act, 1962 and the provisions of Notification No.9/96-CUS(NT), dated 22.01.1996 issued under Section 11 ibid read with Section 3 of the Foreign Trade (Development and Regulation) Act, 1992 by some unknown persons with active connivance of the appellants rendering the same liable to confiscation under Section 111(b) and (d) of the Customs Act, 1962. Accordingly, Commissioner passed the impugned order of confiscation of impugned goods and imposed penalties on persons found liable to penalty under Section 112 ibid. 5. The appellants essentially contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced to show their licit import did not cover the impugned goods. He stated that the goods also did not have MRP marked thereon. All these rendered them liable to confiscation and the appellants liable to penalty. 8. We have considered the contentions of both sides. There is force in the contention of the appellants that mobile phones are not notified under Section 123 of the Customs Act, 1962 and therefore the onus is on Revenue to prove that the impugned goods were smuggled. We find that the only ground on which the goods are held to be smuggled is that the Bills of Entry produced by M/s. Gold Manner Overseas and M/s. Waho Wireless Pvt. Ltd. did not cover the impugned goods. In this regard, it is pertinent to mention that the Bills of Entry filed for import of mobile phones do not mention details of individual mobile phones. Once the goods are in the open market, it is the onus of Revenue to establish with sustainable evidence that these goods were smuggled in any sense other than that they did not carry MRP. We find that Revenue has not been able to discharge this onus. Even if the appellants had not produced any Bills of Entry to show the licit import of the impugned goods, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red on the goods, non-declaration of MRP results in violation of Foreign Trade Policy and rendered the goods liable to confiscation. Twenty nine Cartons of mobile phones remained unclaimed and therefore their absolute confiscation is clearly sustainable. Regarding mobile phones which were claimed, we find that an option was given to the claimants to redeem the same on redemption fine, which was about 20% of the value of the goods, which in our view is not unreasonable or arbitrary having regard to the nature of the goods and therefore does not warrant appellate intervention. 9. We find that all the claimants acquired possession or/and were concerned in carrying, keeping, selling, purchasing or dealing with the impugned goods, which were liable to confiscation and as they were aware that the impugned goods did not carry MRP thereon and so were liable to confiscation, they were liable to penalty under Section 112 of the Customs Act, 1962. However, we find that the impugned goods were held liable to confiscation in the impugned order on the ground that they were smuggled and also that they did not carry MRP. As stated above, Revenue has not been able to discharge the onus to establ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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