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2016 (7) TMI 776 - GOVERNMENT OF INDIA

2016 (7) TMI 776 - GOVERNMENT OF INDIA - 2016 (343) E.L.T. 861 (G. O. I.) - Import of baggage without declaring the goods - passing through green channel - electronic goods - Held that:- Government finds that in the present case the applicant failed to declare the impugned goods imported as baggage thereby violating the provisions of Section 77 of the Customs Act, 1962. The said goods were undisputedly chargeable to appropriate duty under Section 12 read with Section 78 of the Act. The applicant .....

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e duty has not been paid on the goods in terms of Section 28 AA (now 28AB) of the Act, ibid. Hence interest is also rightly held to be payable by the impugned order on the duty demanded. - Government also finds no merit in the argument of the applicant that no interest is leviable on goods placed under seizure. Section 110 the Act ibid provides for seizure of goods liable for confiscation for improper importation into the country in terms of Section 111. Seizure and confiscation of goods doe .....

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-Original No. 16/2013/AK/ADC/IGI dated 05.03.2013 passed by Additional Commissioner of Customs, IGI Airport, New Delhi. 2. Brief facts of the case are that acting on a specific intelligence that the applicant, holder of Indian Passport No. J-7347673 issued from Chandigarh, would arrive from Hong Kong by flight no. Al-317 dated 03.04.2012 and carry memory cards, surveillance was mounted on the applicant right from his disembarkation from Bay No. 22-B. On arrival after completing his immigration f .....

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personal search and search proceedings of his two hand bags were conducted before two panchas. As a result of his personal search currency INR 430, USD 24 and HKD 20, Disembarkation Slip, E Ticket booked on 02.04.2012, Boarding Pass of the Pax, two used mobile phones-Sony Ericssion and Zen Mobile and sales invoice no. 07048 dated 03.04.2012 were recovered. Of these items the currency and used mobile phones being within the permissible limits and being used personal effects were subsequently retu .....

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0 HAND BAG NO. 2. (Blue colour laptop bag) 3. 4GB Micro SD HC 500 pcs each in six packs and 114 pcs in one pack wrapped in 7 red colour air bubbled poly bags 3114 Total 6714 The price of the 4 GB memory cards has been taken at ₹ 215/- per piece. The value of the same has been taken from website flipcard.com and agreed to by the pax. 2.2 Since the applicant could not produce any valid documents in support of the import, 6714 pieces of 4 GB Memory Cards, collectively valued at ₹ 14,435 .....

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estigation. A panchnama dated 03/04.04.2012 was drawn on the spot. 2.3 In his voluntary statement dated 04.04.2012 tendered under Section 108 of the Customs Act, 1962 wherein the applicant stated that he arrived at IGI Airport , New Delhi from Hong Kong by flight no. Al 317 on 03.04.2012; that while going out of the green channel, he was intercepted by a Customs officer near the exit gate of arrival hall and was diverted for X-ray of his two handbags; that after observing the images of memory ca .....

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er shop in the name and style of M/S Meera Company which was later on closed; that in January 2012, he along with his brother-in-law Shri Lalit Kumar started a company namely M/S Rich Hood Trading Company Pvt. Ltd dealing in the trading of memory cards; that they used to purchase memory cards from local markets in Delhi and sell them in the local markets of Hisar and its surrounding markets; that on an average they used to earn about ₹ 20,000/- each per month; that he had visited China and .....

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sell these memory cards in the open market of Haryana; that he visited China/Hong Kong on three earlier occasions only to explore the business prospects for their company but did not bring any dutiable goods while returning to India; that during this present visit to Hong Kong he carried with him US Travel Card of a value of USD 9000 and that while some funds were arranged from the sale of his shop, the rest were raised from his family savings. 2.4 The applicant could not produce any valid docum .....

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and in respect of the trading premises, it has been reported that no such address as disclosed by the Pax exists. 2.6 The recovered invoice no.07048 dated 03.04.2012 revealed the price of 4 GB memory cards SD as 1.84 USD. In order to ascertain the true value for the purpose of assessing the seized goods, market enquiry was conducted. On account of the market enquiry, it is transpired that 4 GB memory card SD are available in the market @ ₹ 215 per piece. In view of the above, it appeared t .....

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hould not be held liable to confiscation under Section 111 (l) & (m) of the Act ibid. (ii) The two hand bags (one brown colour zipper bag and one blue colour laptop bag) used for concealing the said seized goods should not be held liable to confiscation under Section 118 read with Section 119 of the Act, ibid. (iii) Customs duty and Education cess @ 36.05% total amounting to ₹ 3,90,290/should not be demanded and recovered from him under Section 28 of the Act ibid. (iv) Interest on the .....

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cation of the seized memory cards valued at ₹ 10,82,633 /- recovered from the applicant under Section 111(1) & (m) of the Customs Act, 1962 with an option to redeem the same on payment of redemption fine of ₹ 2,50,000 /- under Section 125 of the Act ibid and on payment of appropriate duty and interest under Section 28 and 28 AB of the Act ibid. (iii) Confiscation of two hand bags used for concealing the aforesaid seized goods under Section 118 and 119 with an option to redeem the .....

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demption fine to ₹ 1,55,000 /- and penalty to ₹ 1,00,000 /- under Section 112(a) of the Act, ibid. 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 on the following grounds: 4.1. That the order passed by the Commissioner of Customs (Appeals) is not correct. 4.2. That no interest is leviable under Section 28 AB on the goods seized under Section 110 of the Customs Ac .....

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or any interest payable has not been paid, pan-paid or erroneously refunded for any reason other than the reasons of collusion or any willful mis-statement or suppression off acts A. the proper officer shall, within one year from the relevant date, serve notice on the person chargeable with the duty or interest which has not been so levied or which has been short-levied or shod-paid or to whom the refund has erroneously been made, requiring him to Show Cause why he should not pay the amount spec .....

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ed, the date of refund; From the above said language of Section 28 of the Customs Act, 1962 it is clearly established without any doubt that Section 28 is applicable only when there is order of clearance passed by the proper officer and the proper officer has to issue a Show Cause Notice for duties not levied or short levied or erroneously refunded within one year from the date of passing of the order by the proper officer. That neither their case is of provisional assessment under Section 18 of .....

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-levied or non-levied pursuant to an order of assessment and since no order of clearance under Section 47 ibid issued, no short few or non-levy of duty can arise for recovery in terms of Section 28 ibid " 4.5. Section 44 of the Customs Act clearly stated that Section 47 of the Customs Act is not applicable to the goods imported under baggage and goods imported by post. There is no question of payment of interest under Section 28AB. 4.6. The applicant prayed for setting aside the Order passe .....

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Government of India's Order No. 21/2014-Cust dated 28.01.2014 in the case of CC, Delhi vs Nirvair Singh. 6. Government has carefully gone through the relevant case records available in case files, oral & written submission and perused the impugned Order-in-Original and Order-in-Appeal. 7. On perusal of records, Government observes that the applicant upon arrival from Hong Kong by flight no. Al-317 dated 03.04.2012 had mis-declared the impugned goods carried by him which vide impugned Or .....

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bid. A penalty of ₹ 2,00,000 /- was also imposed upon the applicant under Section 112 ibid. Aggrieved by the said order, the applicant filed appeal before Commissioner (Appeals), who vide impugned Order-in Appeal reduced the quantum of redemption fine and penalty. Now the applicant has filed Revision Application on the grounds stated in para 4. 8. Government observes that the limited issue on which the present application has been filed by the applicant is regarding the applicability of Se .....

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demand/recovery of duty not levied can be done under Section 28 of the Act, ibid if the order is passed by the proper officer for clearance of goods under Section 47 of the said Act; therefore, when Section 28 of the Customs Act, 1962 is not applicable then demand of interest under Section 28AB is also not maintainable. Moreover, the confiscated goods were in possession of the department. Reliance has been placed by the applicant on the decision of the CESTAT in the case of Essar Oil vs. Commis .....

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y other law for the time being in force, on goods imported into, or exported from India. (2) The provisions of sub-section (1) shall apply in respect of all goods belonging to Government as they apply in respect of goods not belonging to Government". From the plain reading of the Section it is clear that at the time of import, duty is chargeable on all the goods imported into the country irrespective of mode of import viz cargo, baggage, post etc. How these goods will be cleared upon import .....

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or erroneously refunded, or any interest payable has not been paid, part-paid or erroneously refunded, for any reason other than the reasons of collusion or any willful mis-statement or suppression of facts, - (a) the proper officer shall, within one year from the relevant date, serve notice on the person chargeable with the duty or interest which has not been so levied or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to Show Cause why .....

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layed payment of duty and reads as under: "Section 28AA-Interest on delayed payment of duty- (1) Notwithstanding anything contained in any judgment decree, order or direction of any Court, Appellate Tribunal or any authority or any authority or in any other provisions of this Act or the rules made there under, the person, who is liable to pay duty in accordance with the provisions of Section 28 shall, in additional to such duty, be liable to pay interest, if any, at the rate fixed under sub .....

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date of such erroneous refund, as the case may be, up to the date of payment of such duty. (3) Notwithstanding anything contained in sub-section (1) no interest shall be payable where- (a) the duty becomes payable consequent to the issue of an order, instruction or direction by the Board under Section 151 A; and (b) such amount of duty is voluntarily paid in full, within forty-five days from the date of issue of such order, instruction or direction, without reserving any right to appeal against .....

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and tariff valuation in respect of baggage The rate of duty and tariff valuation, if any, applicable to baggage shall be the rate and valuation in force on date on which a declaration is made in respect of such baggage under Section 77". 13 Government finds that in the present case the applicant failed to declare the impugned goods imported as baggage thereby violating the provisions of Section 77 of the Customs Act, 1962. The said goods were undisputedly chargeable to appropriate duty und .....

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