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Shri Zaheer Ahmad Versus Commissioner of Customs IGI, Airport, T-3, New Delhi

2016 (7) TMI 418 - GOVERNMENT OF INDIA

Demand of duty and interest - Import of goods - passing through green channel without declaration - bags were found to contain 80 pieces of jeans of various sizes, plain artificial jewellery made of brass, plated with silver of 22KT weighing 5000gms and studded artificial jewellery of brass studded with glass stones, plated with silver of 22KT weighing 15000 grams. - Held that:- He carried the said goods with an intention to evade payment of the Customs duty leviable on these goods. Therefore du .....

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in turn is charged on such duty not paid. - Decided against the applicant. - F. No. 375/34/B/2013-RA - ORDER NO. 27/2016-CUS - Dated:- 4-3-2016 - SMT. RIMJHIM PRASAD, JOINT SECRETARY ORDER: This revision application is filed by Shri Zaheer Ahmad, (here in after referred to as the applicant) against the Order-in-Appeal No. CC(A)CUS/606/2013 dated 25.10.2013 passed by Commissioner of Customs, (Appeals) NCH, New Delhi, with respect to Order-in-Original No. 13/2013/AK/ADC/IGI dated 14.02.2013 passed .....

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rted for screening of his baggage. As on screening of his baggage something abnormal was found the four bags were examined before two independent panchas and in the presence of the passenger and were found to contain 80 pieces of jeans of various sizes, plain artificial jewellery made of brass, plated with silver of 22KT weighing 5000gms and studded artificial jewellery of brass studded with glass stones, plated with silver of 22KT weighing 15000 grams. The applicant produced two invoices one ea .....

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invoice dated 22.04.2012 to ₹ 32185/- by taking exchange rate @ ₹ 1.57 per Bhat. The certificate of appraisement dated 24.04.2012 was also obtained from the jewellery appraiser. The said goods totally valued at ₹ 5,27,185/- were seized under Section 110 of the Customs Act, 1962 on a reasonable belief that the same are liable for confiscation under the Act, ibid. Statement of the passenger Shri Zaheer Ahmad was recorded on 24.04.2012 under Section 108 of the Customs Act, 1962. .....

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13/AK/ADC/1G1 dated 14.02.2013 adjudicated the case and passed the following order: i) Disallowed free allowance of ₹ 35,000/- on account of non bonafide nature of the goods and contravention of various provisions of the Act, ibid done by the passenger as stated supra. ii) Ordered to confiscate the seized impugned goods (artificial jewellery and jeans) totally valued at ₹ 5,27,185/- under Section 111 (d), (i), (l) and (m) of the Customs Act, 1962. However gave an option to redeem the .....

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₹ 50,000/- upon the applicant under Section 112 of the Customs Act, 1962 for the various acts of omission and commission. The applicant deposited duty of ₹ 1,90,050 /- plus interest ₹ 33,178/- redemption fine ₹ 1,01,000/- and penalty of ₹ 50,000/- vide BR No. 5036 dated 12.04.2013 and got the impugned goods cleared. 3. Being aggrieved by the said Order-in-Original, the applicant filed appeal before Commissioner(Appeals) vide Order-in-Appeal No.CC(A)CUS/606/2013 date .....

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able under Section 28 AB on the goods seized under Section 110 of the Customs Act, 1962 that Section 28 AB is applicable only in the case of recovery of duties not levied or short levied or erroneously refunded under Section 28 of the Act, ibid. That the goods were seized by the Customs Department and were with the Customs Department. There is no question of short levied or not levied or erroneously refunded under Section 28 of the Act. 4.3. That Section 28 of the Customs Act, 1962 may be read a .....

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y been made, requiring hi,'77 to Show Cause why he should not pay the amount specified in the notice; Explanation- For the purpose of this Section, "relevant date" means - a) In a case where duty is not levied, or interest is not charged, the date on which the proper officer makes an order for the clearance of goods; b) In a case where duty is provisionally assessed under Section 18 of the Act, ibid, the date of adjustment of duty after the final assessment or reassessment, as the .....

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per officer. That neither their case, is of provisional assessment under Section 18 of the Customs Act, 1962 nor their case is the case of refund of Customs Duty. That in their case no order of clearance has been passed by the proper officer. Therefore, Section 28 of the Customs Act, 1962 is not applicable. 4.4. The applicant placed reliance on the decision of CESTAT in the case of Essar Oil ltd Vs. Commissioner of Customs (Prev), Jamnangar-2006 (197) ELT 450 (Tri-Mumbai) as under: Demand-short .....

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Section 28AB. 4.6. The applicant prayed for setting aside the Order passed in respect of demand of interest under Section 28AB or any other relief as deem fit. 5. Personal hearing in this case held on 07.09.15 was attended by Shri S. S. Arora, Advocate on behalf of the applicant, who reiterated the grounds of revision application. He contended that Section 28 of the Customs Act, 1962 is applicable only to goods cleared for home consumption under Section 47. That this Section is clearly not appl .....

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ated under Section &(m) ibid with option to redeem the same on payment of redemption fine of Rs. under Section 125 and payment of appropriate duty and interest under Section 28 & 28AB ibid. Packing material used for concealing the said goods was confiscated under Section 118 ibid with the option to the applicant to redeem the same on payment of ₹ 1000/- under Section 125 ibid. A penalty of ₹ 50,000/-(Rs.Fifty thousand only) was also imposed upon the applicant under Section 11 .....

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erest under Section 28AB of the Customs Act, 1962 is not leviable in the instant case as the Section 28 invoked for the demand of duty is not applicable in this case in as much that no order for clearance of goods was passed under Section 47 of the Act, ibid for home consumption by virtue of Section 44 of the Act, ibid; that Sections 46 & 47 of the Customs Act, 1962 are not applicable in baggage cases; that demand/recovery of duty not levied can be done under Section 28 of the Act, ibid if t .....

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ernment further observes that Chapter V of the Customs Act, 1962 deals with levy of, and exemption from, Customs duties and Section 12 which is the charging Section reads as under: 'Section 12: Dutiable goods- (1) Except as otherwise provided in this Act, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act, 1975 or any other law for the time being in force, on goods imported into, or exported from Indi .....

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apter VII, clearance of baggage and post articles are covered under Chapter XI of the Act. 10. Section 28 of the Customs Act, 1962 on the other hand provides for the recovery of any duty which has not been paid, short paid or erroneously refunded and reads as under: "Section 28-Recovery of duties not levied or short-levied or erroneous/y refunded-(1) Where any duty has not been, levied or short-levied or erroneously refunded, or any interest payable has not been paid, part-paid or erroneous .....

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y or interest, may pay before service of notice under clause (a) on the basis of (i) his own ascertainment of such duty,' or (ii) the duty ascertained by the proper officer the amount of duty along with the interest payable thereon under Section 2844 or the amount of interest which has not been so paid or part- paid" 11. Section 28 AA (now 28AB) of the Customs Act, 1962 provides for the interest on delayed payment of duty and reads as under: "Section 28AA-Interest on delayed paymen .....

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uty under that section. (2) Interest at such rate not below ten per cent and not exceeding thirty-six percent, per annum, as the Central Government may, by notification in the official gazette, fix, shall be paid by the person liable to pay duty in terms of Section 28 and such interest shall be calculated from the first day of the month succeeding the month in which the duty ought to have been paid or from the date of such erroneous refund, as the case may be, up to the date of payment of such d .....

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ent notes that Chapter XI of the Customs Act, 1962 specifies the special provisions regarding baggage, goods imported or exported by post and stores. Section 77 and 78 of the said Act read as under: 'Section 77-Declaration by owner of baggage- The owner of any baggage shall, for the purpose of clearing it, make a declaration of its contentions to the proper officer. Section 78-Determination of rate of duty and tariff valuation in respect of baggage The rate of duty and tariff valuation, if a .....

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