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Commissioner of (Import & General) , New Delhi Versus Mr. Shamsuddin Malik, Shri Didar Singh

2016 (5) TMI 1210 - GOVERNMENT OF INDIA

Smuggling of memory cards in unaccompanied baggage - Whether the impugned goods as held by the adjudication authority liable for absolute confiscation have been righty allowed to be released on payment of redemption fine and penalty by the Commissioner (Appeals) and whether penalty imposed on the respondents been rightly reduced or not - Held that:- the impugned goods are in commercial/trade quantity and do not constitute bonafide personal effects under Section 79 ibid read with the EXIM policy .....

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ustoms Act and Foreign Trade (Development and Regulatory) Act and would appropriately constitute prohibited goods liable for confiscation under Section (i),(I) & (m) ibid. Therefore, government upholds Department’s contortion that absolute confiscation is legally warranted keeping in view the facts and circumstance of the case.

The appellate authority had completely ignored the fact that Shri Shamsuddin Malik was the carrier of the impugned goods and he brought the goods on behalf of .....

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he commissioner (Appeals) has erred in allowing releasing of the impugned goods on payment of redemption fine and reduced penalty.

Government further notes that commissioner (Appeals) in his order has held that since the baggage rate of duty was levied on the impugned goods which inbuilt contains the provision of penalty also, it justifies the reduction of penalty amount imposed by the adjudicating authority. Government is not inclined to accept the averments of appellate authority as .....

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ods by way of outright concealment and mis-declaration as part of unaccompanied baggage. Therefore, the justification of appellate authority in reducing the penalty is not tenable and Government restores the penalty amount as imposed by the original authority on both the respondents. - Revision applications allowed in favor of revenue. - F. No. 380/34/B/13-RA - ORDER NO. 04/2016-CUS - Dated:- 28-1-2016 - Rimjhim Prasad, Joint Secretary ORDER This revision application is filed by commissioner of .....

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. 2. On specific information that a passenger Shri Shamsuddin Malik would try to smuggle memory cards through un-accompanied baggage by declaring them as Personal effects/ household goods, the officers of SIIB Unit of customs, intercepted the shipment arrived on 22.07.2011 at IGi Airport, new Delhi, under MAWB 09890373161, pertaining to Shri Shamsuddin Malik after he filed Baggage Declaration from dated 23.07.2011, for clearance of his baggage and declared the goods as personal effects valued on .....

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atement of Shri shamsuddin malik was recorded on 23.7.2011 under Section 108 of the Customs Act, 1962 as given in para 3 of the impugned Order-in-Original wherein he interalia stated that on the instructions from one Shri Dildar singh, who had promised him to give ₹ 3/- per memory card, he brought 22300 nos of memory cards along with other goods; that he met Shri Didar Singh approximately 2 months back in Gaffar Market, Delhi; that he sad to talk to Shri Didar Singh often of he knew that S .....

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hipment of goods to shri Ranjit Singh of Hong Kong but he did not bring the sasme alongwith him on his return; that after his return from Hong Kong, Shri Ranjit Singh booked the said goods, and that he did no purchase the memory cards which belonged to Shri Didar Singh and on whose instructions, Shri Ranjit Singh booked these items in his name; that he was to get only carrying charges; that he declared the value of the goods in the Baggage Declaration from on the instruction of Shri Ranjit Singh .....

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ment of Shri Didar Singh dated 23.7.2011, was recorded under Section 108 of Customs Act, 1962 wherein he interlia stated that he was constantly in tough with Shri Shamsuddin Malik through his mobile phone and reached metro pillar no. 578 take the delivery of memory cards; that he knew Shri Shamsuddin Malik for the last three months; that Shri Ranjit Singh booked approximately 23000 nos of SD memory cards in the unaccompanied baggage of Shri Shamsuddin Malik; that he was shown the statement dated .....

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i shamsuddin Malik in and around Customs House, New Delhi. 2.4 After due process of law, the adjudicating authority decided the case vide Order-in-Original dated 19.10.2012 wherein he ordered as blew:- (a) Ordered of the absolute confiscation of the goods collectively valued at ₹ 31,07,178/- in terms of provisions of Section 111 (i), (I) & (m) of the customs Act, 1962 as the owner of the goods did not claim the goods (b) Imposed a penalty of ₹ 10,00,000/- (Rs. Ten lacs only) on S .....

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ion fine. Penalty imposed upon him was reduced from ₹ 10,00,000/- (ten lacs) to ₹ 1,00,000/-(one lac) and penalty imposed on Shri Didar Singh was reduced from ₹ 15,00,000/- (Fifteen lacs) to ₹ 2,00,000/- (Two lacs). 4. Being aggrieved by the impugned Order-in-Appeal, the applicant has filed this revision application under Section 129 DD of Customs Act, 1962 before Central government of the following grounds: 4.1 That the Commissioner (appeal) has erred in holding that the .....

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een complied with Conversely, therefore, if the conditions subject to which the goods are permitted to be imported are not met, they become prohibited goods. Goods are permitted to imported as baggage any constitute bonafide baggage of the passenger in terms of para 2.20 of Exim Policy, 2009-14. Therefore if goods have been imported in commercial quantity as baggage, in violation of the above condition they become prohibited goods as per definition reproduced above. 4.2 that the Commissioner (Ap .....

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ectly confiscated the goods absolutely by placing reliance on the judgment of the Tribunal in the case of GV Ramesh vs commissioner of Customs Chennai 2010(252)ELT(tri-che.) and UOI vs Mohd. Aijaj Ahmed 2009(244)ELT 49 (Bom.), Commissioner (Appeals) failed to appreciate that the subsequent act of Shri Didar Singh giving no objection to release of goods to Shri shamsuddin Malik was an afterthought and could not be taken cognizance of in face of the categorical admission as a carrier of the impugn .....

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h the appellants imposed under the adjudication order for smuggling of goods valued at ₹ 31,0,7178/- by way of outright concealment and mis-declaration as part of unaccompanied baggage. The adjudicating officer had rightly confiscated the goods absolutely and imposed penalty of ₹ 10,00,000/- on Shri Shamsuddin Malik and ₹ 15,00,000/- on Shri Didar Singh respectively under Section 114AA of Customs Act, 1962. That this has been reduced ny Commissioner (Appeals) to ₹ 1,00,00 .....

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ase of imposition of reasonable fine in lieu of confiscation and reduction of penalty, as the goods are freely importable. That in this case the goose were attempted to be smuggled into India through baggage clearance mode with outright mis-declaration to avoid Customs duty and penalty on non bonafide baggage as the goods on examination were found to be in commercial quantity. (b) That the quantum of Redemption fine exposed cannot be indexed to the rate of duty applicable to regular imports as t .....

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settled legal systems for import of commercial goods through baggage with declaration of Personal effects/household goods valued only at ₹ 10,000/- for one package. That on examination of his baggage, goods collectively valued at ₹ 31,07,178/- were to evade customs Duty but also to escape several other important complications including those relating to foreign exchange remittance, income tax, regulations etc. (c) That on the basic of evidences against Shri Shamsuddin Malik and Shri .....

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artment Applicant has prayed to the Revisionary Authority the following:- (i) That view of the above facts and circumstances, evidence on record and on ground of appeal of the case, the above mentioned Order-in-Appeal NO.CCA/I&G/01/02/2013 dated 07.01.2013, passed by the Commissioner of Customs (Appeals), New Customs House, New Delhi should be set aside and Order-in-Original is restored/upheld. (ii) Or pass such order as the Government of India, may deem fit, proper and appropriate in the li .....

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e respondents nor their authorized the ground of revision application. Neither the respondents nor their authorized representative attended the personal hearing grinded from time to time by Revisionary Authority nor sought any adjournment. Hence Government proceeds to decide the case on the basis of available case records pertaining to the case. 7. Government has carefully gone through the relevant case records available in the case filed, oral & written submission and perused the impugned O .....

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cellaneous electronic goods and fabric valued at ₹ 3,07,178/- were recovered. The goods being mis-declared and in commercial quantity and in the baggage declaration were placed under seizure under Section 110 of Customs Act, 1962. In the statement of Shri Shamsuddin Malik recorded on 23.07.2011 under Section 108 ibid wherein he ineralia admitted that he had imported the goods on the instructions of one Shri Dildar Singh for which he was to get caring charges; that he did not purchase the g .....

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hamsuddin Malik and Shri Didar Singh which was adjudicated by the adjudicating authority ordering absolute confiscation of the impugned goods as owner of the goods as owner of the goods did not claim the goods; imposed penalty vide Section 114 AA ibid of ₹ 10,00,000/- on Shri Shamsuddin Malik and ₹ 15,00,000/- on Didar Singh. The commissioner (Appeals) vide impugned Order-in-Appeal allowed release of goods to Shri Shamsuddin Malik on payment of duty and fine of ₹ 1,00,000/- and .....

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y reduced or not. 10. Government notes is is an undisputed fact on record that the impugned goods totally valued at ₹ 31,07,178/- are n commercial/trade quantity and do not constitute bonafide personal effects under Section 79 ibid read with the EXIM policy in force and the passenger neither made a true declaration of the goods nor declared true quantity and value. therefore, he contravened the provisions of Section 77 and 79 of the Customs Act. In terms of CBEC s Circular No. 29/200-Cus d .....

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d goods and were imported in gross violation of the provisions of the Customs Act and Foreign Trade (Development and Regulatory) Act and would appropriately constitute prohibited goods liab le for confiscation under Section (i),(I) & (m) ibid. Therefore, government upholds Department s contortion that absolute confiscation is legally warranted keeping in view the facts and circumstance of the case. 11. Government further notes that under Section 125 ibid wherein confiscation of any goods is .....

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as recorded on 23.07.2011 under Section 108 of Customs act, 1962, wherein he inter-alia stated that on the instructions of the Shri Didar Singh, who had promised him to give ₹ 3/- per memory card as carrying charge, he brought 22,300 nos. of memory cards align with other goods, that he brought the goods for Shri Didar Singh, who was to meet him at metro pillar No. 578 to take the delivery of memory cards after clearance from Customs. Shri Didar Singh who was apprehended by Customs Officers .....

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ame of Shri Shamsuddin Malik after he left Hong Kong. Therefore, the goods cannot be released to Shri Shamsuddin Malik. Government notes that the appellate authority had completely ignored the fact that Shri Shamsuddin Malik was the carrier of the impugned goods and he brought the goods on behalf of Shri Didar Singh for monetary gain. The no objection given by Shri Didar Singh to Shri Shamsuddin Malik was nothing but an afterthought to escape from the penal action at the hands of Customs Authori .....

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r the Hon ble High Court of Chennai in the case of S. Faisal Khan vs. Joint Commissioner of Customs (Airport) Chennai 2010 (259) ELT 541 (Mad) upheld absolute confiscation of goods carried on behalf of someone else for a monetary consideration. In the case of Ram Kumar vs. commissioner of Customs 2015 (320) ELT 368 (Del) also the Hon ble High court of Delhi has held that carrier is not entitled to benefit of Section 125 of Customs Act, 1962. 13. In view of above, government holds that the origin .....

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