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2016 (6) TMI 189 - GOVERNMENT OF INDIA

2016 (6) TMI 189 - GOVERNMENT OF INDIA - TMI - Condonation of delay - 134 days - Absolute confiscation of impugned goods and imposition of penalty - Seizure of Cigarettes of 246 cartons of Davidoff brand - Mis-declaration of goods - none of the cigarette cartons contained any statutory pictorial health warning - goods are smuggled goods - Held that:- Government notes that the time limit of filing revision application before the Revisionary Authority has been provided under Section 129 DD of the .....

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cause. There is no provision in Section 129 DD ibid to condone delay exceeding 3 months. Here, the Revision Application has been made contrary to the provision of Section 129 DD (2) and is therefore liable for rejection. - Decided against the applicant - F.No.373/44/B/13-RA-CUS - ORDER NO. 13/2016-CUS - Dated:- 15-2-2016 - Rimjhim Prasad ORDER This revision application is filed by Shri Abdul Kareem against the Order-in-Appeal No. 142/2012 dated 23.08.2012 passed by Commissioner of Customs, (Appe .....

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and that the same were reaching enrooted to Mangalore Central Railway Station for onward transportation. Actin upon the said intelligence, the officers of DRI intercepted the parcel of Mangalore Central Railway station, opened and examined in the presence of independent witnesses. It was found that the said parcel contained 246 cartons of Davidoff brand cigarettes, made in Germany totally valued at ₹ 2,46,000/- as detailed in the Mazahar dated 10.04.2011. None of the cigarette cartons cont .....

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s DRI/MRU/INVN/CIG/2011 dated 11.04.2011 and 09.05.2011, to furnish copy of the receipt along with complete details of sender and declared contents of the parcel. The Commercial Supervisor, Southern Railway, Kanhangad, vide his letter No. KZE 724219 along with a certified copy of the forwarding note dated 09.04.2011. * Name & address of the consignor: Kareem,Pallikere, Keekanam (PO) Kanhangad Phone no. 08089295113; * Consignee: Self (Kareem), Mangalore, * Consignee: Self goods: Plastic bundl .....

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angad Railway Station, on the same day; that the delivered the consignment at around 0500 hrs on 10.04.2011 through an Auto driver Shri Haneef of Bekal; that he boked the consignment for Mangalore as it was not possible to book the items directly to Mumbai from Kanhangad; that from Mangalore, it was to be booked again for Mumbai by Matsya Gandha Express; that from Mangalore, it was to be booked again for Mumbai by Matsya Gandha Express that he had collected the cigarettes from various people on .....

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re that these were imported Cigarettes and were without the statutory health warnings; that he was also aware that it was illegal to buy and sell such imported cigarettes without the statutory health warning; that he resorted to such illegal activity of purchasing the said imported Cigarettes without statutory health warning and transporting the same of the purpose of selling, in the greed of the profit he would have fetched in the deal; that on being shown the copy of Railway Parcel Receipt No. .....

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d another ₹ 900/- to Shri Hamza towards onward transportation from Mangalore to Mumbai. 2.3 Shri Hamza of Bekal, who is working as a Porter at Kanhangad Railway Station was summoned on 26.05.2011 and his statement was recorded under Section 108 of the Customs Act, 1962. Shri Hamza in his statement dated 26.05.2011 interalia stated that the consignment in question was brought for transporting to Mumbai by Shri Kareem of Kanhangad; that Shri Kareem had come to him for the first time somewher .....

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m to get the booking done this time also that he identified the copy of railway parcel Receipt No. 724129 dated 09.04.2011 of Kanhangad Railway Station, pertaining to the seized consignment of 246 Cartons of cigarettes, wherein sender s name is mentioned as Kareem on being shown to him; that he had approached Cargo Supervisor (CS) of the Kanhangad Railway Station for booking this consignment and he had received this receipt from him; that Shri Kareem had informed him that it contains only ready- .....

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s not aware that the consignment contained cigarettes. 2.4 Investigation revealed that Shri Abdul Kareem, 433/10, Bekal Kunil, Khiliriya Naga Bekal fort Post, Pallikere, Kasaragod had knowingly acquired possession of non-duly paid imported 246 Cartons of Davidoff brand cigarettes made Germany, without statutory pictorial warning which were liable to confiscations under the provisions of Customs Act, 1962, and attempted to transport and sell it for a profit. Investigation also indicated that Shri .....

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07.09.2011 was issued to Shri Abdul Kareem, proposing confiscation of Cigarettes of 246 cartons of Davidoff brand (mad in Germany, valued at Rs, 2,46,000/- should not be confiscated under Section 111(d) & (j) of the Customs Act, 1962 read with Cigarettes and Other tobacco Products (Packing and Labelling), Rules, 2007 as amended and penalty under Section 112(b) of customs Act, 1962 should not be imposed in him for the confiscation of provisions of customs Act, 1962. 2.6 The Show Cause Notice .....

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er Tobacco Products (Packaging and labelling) Rules, 2008 as amended. b. confiscation of the plastic gunny bag and the three card board carton boxes used for packing the said goods referred at Sl. No. (i) above under Section 118 (a) of the Customs Act, 1962. c. Imposed penalty ofRs.50,000/- (Rupees Fifty thousand only) under Section 112 (b) of the Customs Act, 1962 on Shri Abdul Kareem, for his act of omission and commission by which the goods are rendered liable to confiscation under Section II .....

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request for condonation of delay in filing Revision Application before Central Government on the Following grounds: 4.1 That the order of the lower authority is against law, weight of evidence and probabilities of the case. 4.2 That non-application of mind is writ-large on the order under challenge. that the officers under the lower authority has seized the subject goods at Mangalore Railway Station, while on transit from Kanhangad Railway Station under parcel receipt No: 724149 with sender s na .....

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confessional statements and come into a conclusion that the goods are smuggled goods and therefore liable for confiscations under Section 111 (d) of the Customs Act, 1962. That there is no independent corroborative evidence to prove that the impugned goods were imported resorting that method of smuggling. That the Commissioner Appeals did not consider this aspect and quashed the order of the 1st lower authority and upheld the said order by committing miscarriage of justice. 4.3 That the findings .....

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ection 108 of the Customs Act with a confessional statement. That the former being a statement recorded by a Gazetted Officer and the later being a voluntary statement given by the Noticee , has got much difference in the eyes of law. That the applicant never gave any confessional Statement as found by the lower authority rather the statements were recorded under threat and coercion. That the applicant had retracted the statement given under Section 108 of the customs Act. That the Commissioner .....

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bring any evidence to the effect that the statement, recorded within the walls of the Custom Office, was taken under threat. That retraction is the privilege granted by the law, which the applicant had resorted through his counsel. That the impugned order Is illegal, arbitrary and unsustainable in the eye of law liable to be set in its entirety. 4.5 That the applicant had submitted before the 1st lower authority that he had purchased the impugned goods from various duty paid shops. That the iss .....

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ed before the officers under the 1st lower authority that the subject goods were brought from Dubai to India through green channels of various Airports, without declaring the same to Customs and thereby evaded customs duty. That these statements are false forcibly obtained for the purpose of the case and hence were retracted. That the lower authority had relied upon the forcibly taken version of the applicant that he had purchased the goods from various people. That there is no case for the 1st .....

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port and on which date the impugned goods were imported by resorting the method of smuggling as found by the lower authority. That without any legal support evidence, the lower authority has come to the findings that he impugned goods were imported violating the provisions of Customs Act. That the impugned order is therefore arbitrary, illegal and unsustainable in the eye of law, liable to be dropped. 4.7 That the pre-requirement of statutory health warning is not applicable in this case. That t .....

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arton boxes suffers severe legal infirmity, meriting outright rejection. 4.8 That the subject goods not being purchased by the applicant for the sale is not covered within the ambit cigarettes and other Tobacco products (Packing and labelling) Rule 2008 That the applicant had purchased the impugned goods for his use and had transported the same to Mangalore for his convenience. That the DRI officials have seized the goods while on transit and not when the applicant attempted to sell or supply th .....

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n the applicant without any ground. That the lower authority ought to have considered the fact that provisions of Customs huge penalty on the applicant deserves absolute rejection. 4.9 That the decision of the lower authority, confiscating the impugned goods under Section 111 (d) of the Customs Act speaks a sorry reading of the affairs. That Section 111(d) is applicable when any goods are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of bein .....

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e are no evidences on record to substantiate import. That the Investigating authorities have not even found any details regarding the place of import and the identity of the importer. That DRI has not case that the applicant had imported the subject goods and had removed such goods from the customs areas against provision of law. That the officers under the lower authority had seized the goods while on transit and not when those were imported or attempted to import, sell produce, distribute or s .....

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ery carton as mandated under the Tobacco Products (Packing and labelling) Rule 2008. That the order of absolute confiscation of goods under the impugned order under challenge is liable to be set aside. That the 1st lower authority, in its impugned order, placed reliance on various Apex Court judgements about the burden of proof. That the 1st lower authority has not appreciated the recent decision of the Apex Court in this matter. That once smuggling is alleged, the burden of proof initially lies .....

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er and set aside the order supporting evidence, merits absolute rejection. 5. A Show Cause Notice was also issued to the Respondent Commissionerate on 03.10.2013, in response to which the following submissions have been made: 5.1. That the applicant while sending the impugned cigarettes as a Railway parcel suppressed the actual description of the goods. That instead of 246 cartons of cigarette, the applicant falsely described the goods as clothes. That The cigarettes borne brand name Davidoff an .....

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rport, without declaring to Customs and without paying any duty; that he was aware that is was illegal to buy and sell such imported cigarettes without any health warnings. That the said statement was voluntary and without any threat or force. 5.2 That there was not retraction of the statements, at any time by the applicant. That there was not even any reply to the Show Cause Notice within the stipulated time limit. That the retraction through the counsel at the fag end of adjudication process i .....

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tempt to avoid penal consequences of his omissions and commissions. 5.4. The applicant in his statement recorded under Section 108 has categorically stated as to how he procured the impugned smuggled goods. That the applicant being a habitual smuggler has found ingenious methods of smuggling the goods. 5.5. That the pre requirement to pictorial statutory health warning is fully applicable in this case and the conditions imposed under Section 3 of the cited Rules are applicable in all cases of en .....

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r condonation of delay in filling Revision Application is also filed by the applicant on the following grounds:- 6.1 That vide Order-in-Original 01/2912-ADC dated 17.02.2012, the Additional Commissioner of Customs ordered for absolute confiscation of the Cigarettes. 6.2 That the impugned goods were not imported evading payment of custom duty. That there is no evidence on record to prove that the subject goods were imported resorting the method of smuggling. That there is nothing on the record to .....

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licant later on went abroad or employment and his relatives effectively entrust the case file with his lawyer only on 17.03.2013. That as per the provisions of the Customs Act, the revision application ought to have been filed within three months from the date of communication on the order. That the applicant had received the impugned order on 06.09.2012 and therefore the captioned revision applicant ought to have been filed within 06.12.2012 and that there is a delay of 80 days in filling revis .....

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Application by the applicant after a delay of 134 days. 10. Government notes that the time limit of filing revision applicant before the Revisionary Authority has been provided under Section 129 DD of the Customs act, 1962. The said Section reads as under:- Section 129 DD : Revision by Central Government- (1_ The Central Government may, on the application of any person aggrieved by nay order passed under Section 128 A, where the order is of the nature referred to in the first proviso to sub-sec .....

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aid period of three months, allow it to be presented within a further period of three months . 10.1. From the perusal of above said provision, it is clear that the stipulated period of filing revision application is 03 months form the date of receipt of Order-in-Appeal. This period of 03 months can be extended further 03 months beyond initial period provided sufficient cause which prevented the applicant from filing Revision Application in time has been shown to the satisfaction to the Governmen .....

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