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2015 (12) TMI 586 - CESTAT NEW DELHI

2015 (12) TMI 586 - CESTAT NEW DELHI - TMI - Smuggled goods from NEPAL - Evidence - Valuation - Foreign origin mobile phones were classified in CTH 8517 for the purpose of assessment and were admitted subject to MRP based assessment under Section 4A - Confiscation of goods - Imposition of redemption fine and penalty - Held that:- 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 t .....

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ese 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.

Valuatio .....

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cy 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. .....

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persons in Delhi before they were loaded in SLR van. He was regularly doing so and therefore there was no way that he was not aware that the goods did not carry the MRP which rendered them liable to confiscation and so he is liable to penalty - Appeal disposed of. - Appeal Nos.C/3211-3216, 3254-3255, 3269-3274/2012-CU[DB] - Final Order Nos.53724-53737/2015 - Dated:- 29-7-2015 - Mr. G. Raghuram, President And Mr. R.K. Singh, Member (Technical) For the Petitioner : Mr. Priyadarshi Manish, Advocate .....

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t of 77 confiscated cartons of mobile phones, the confiscation of 29 cartons (remained unclaimed till date) was in absolute terms. (iii) However, as envisaged under Section 125 of the Customs Act, 1962, option was given to pay the redemption fine in lieu of confiscation to the owners/claimants of the goods with the condition that this option may be exercised within thirty days of the issuance of the impugned Order-in-Original:- (a) M/s. BM Technologies Company (appellant Shri Nitin Bansal and Sh .....

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) Shri Dharmender Bansal Rs.10,00,000/- (g) M/s. Gold Manner Overseas Rs.10,00,000/- (h) M/s. Waho Wireless Pvt. Ltd. Rs.10,00,000/- (i) Shri Jasbir Singh Rs.5,00,000/- (j) Shri Vimal Shukla Rs.2,00,000/- (k) Shri Saurabh Agarwal Rs.1,50,000/- (l) Shri Pradeep Kumar Rs.7,00,000/- (m) Shri Mukesh Kumar Rs.1,00,000/- (n) Shri Ravindra Singh Rs.2,50,000/- 2. Based on the information that foreign origin goods smuggled from Nepal through off-route to Delhi were to be diverted to Lucknow by Shatabdi E .....

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s Delhi-Lucknow bound at New Delhi Railway Station, which were loaded on the lease van to be transported to Lucknow. At Lucknow, an employee of Shri Arun Kumar Gupta, namely, Shri Virendra Kumar Pandey unloaded the said goods and handed over the same to Shri Yogesh Kumar Mishra, owner of the courier company. Finally the goods were given to respective persons at Lucknow on the basis of booking receipts issued at Delhi. 3. Foreign origin mobile phones were classified in CTH 8517 for the purpose of .....

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or common name of the commodity packed (c) Net quantity in terms of standard unit of weights and measures (d) Month and year of packing (e) Maximum retail sale price at which the commodity in packaged 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 / .....

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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 as under through their advocate. 6. Shri Arun Kumar Gupta, holder of the leased van, contended that he wa .....

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ndra Kumar Mishra, proprietor of M/s. Hari Om Couriers contended that he was not given any RUDs, which in any way established the smuggled nature of goods and the mobile phones were freely importable without import licence. His is merely a courier company, which couriered the goods. Shri Mukesh Kumar, stated that he is merely an employee of M/s. Hari Om Couriers and was only doing work assigned by his employer. M/s. BM Technology & Co claimed ownership of 1637 pieces of mobile phones contain .....

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stoms office and therefore the panchnama was inadmissible. They stated that the duty on the mobile phone was nominal and therefore there was no reason to smuggle them from Nepal to Delhi and then divert them to Lucknow thereby spending lot of money on freight than duty leviable. It was also contended that the mobile phones were imported in the name of M/s. Gold Manner Overseas and M/s. Waho Wireless Pvt. Ltd. The Bills of Entry of these two importers covered the impugned goods and were not prope .....

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alty. 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 .....

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not have been worse of because it is Revenues 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. It has been held in the case of MB Enterprises Vs. CC, New Delhi [2009 (233) ELT 83 (Tri.-Ahmd.)] that merely in the absence of MRP stickers on packages without any other cogent evidence it cannot lead to conclusion that goods smuggled in nature. In the case of Naveed Ahmed Khan Vs. Bangal .....

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ty of assessee to produce purchase bills or to name seller/broker from whom goods purchased. Circumstances that assessee could not name the broker, may at best create suspicion which cannot substitute proof. Ball bearings not having been notified under Section 123 of Customs Act, 1962, it is not the burden of the assessee to prove their non-smuggled nature when Revenue has failed to discharge its initial burden of proving smuggled nature of ball-bearings . However, it is a fact that mobile phone .....

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rly 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 (307) ELT 650 (Del)], 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 .....

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imants 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 n .....

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f MRP thereon. Therefore, they are liable to penalty under Section 112 ibid. Shri Arun Kumar Gupta has admitted that he was concerned in carrying and transporting the impugned goods as he collected them from various persons in Delhi before they were loaded in SLR van. He was regularly doing so and therefore there was no way that he was not aware that the goods did not carry the MRP which rendered them liable to confiscation and so he is liable to penalty. Similar reasoning applies for imposition .....

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