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TMI Blog2007 (11) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed investigation and it was revealed that the respondent was dealing in smuggled goods. He was actually receiving the various computer parts by courier from some parties in Calcutta and was supplying the same to various persons and the sale proceeds were not sent through the banking channels. Thus it was established that the respondent was dealing in smuggled goods. However, no smuggled goods were seized from the appellant. A Show cause notice was issued to the respondent and the others who are involved in the smuggling for imposition of penalties and also for the au demand of duty. In fact the show cause notice demanded duty of Rs. 92,23,740/- under Section 28 of the Customs Act along with interest under Section 28AB read with Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5(2) of the Customs Act, 1962. 3. Ms. Sudha Koka, learned departmental representative appeared for Section 28 the Revenue and Shri Lakshmi Narayan leramed counsel for the respondent. 4. We heard both sides. The investigations clearly revealed that the respondent was dealing in smuggled goods. The Adjudicating Authority has held the same in his order and has imposed penalty on him under Section 112 of the Customs Act. However, he has held that duty cannot be demanded from the respondent because there is no evidence that the respondent imported the goods. The Revenue has challenged the decision of the Commissioner. Let us examine the correct legal position. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause duty has obviously not been made in view of the facts revealed in the investigation) the notice should be on the person chargeable with duty. In the case of imports we should ask the question as to who is the person chargeable with duty is the person chargeable with duty is the person who imports the goods. In other words the importer is liable to pay duty. Who is the importer? Customs Act, Section 2(26) defines importer, which is reproduced below: "Importer", in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out to be the importer." 6. &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of fine in lieu of confiscation for redeeming the goods. In such circumstances, when the confiscated goods are released, apart from the fine the owner of the goods or the persons referred to in sub-section (1) [i. e a person from whom the goods were seized] is liable to pay the duty. So, Section 125(2) cannot be applied to a situation where there is no seizure and confiscation. In these circumstances, the correct legal position is that the duty can be demanded under Section 28 only on the person chargeable with duty and that person is an importer. Therefore in the absence of evidence to hold that the respondent actually imported the goods, duty cannot be demanded from him. The case law relied on by the Revenue refers to a situation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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