TMI Blog2016 (7) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... htly 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 does not absolve such goods from levy of duty and interest in turn is charged on such duty not paid. - Decided against the applicant. - F. No. 375/29/B/2013-RA - ORDER NO. 34/2016-CUS - Dated:- 22-3-2016 - SMT. RIMJHIM PRASAD, JOINT SECRETARY ORDER: This Revision Application is filed by Shri Vinay Kumar, (here in after referred to as the applicant) against the Order-in-Appeal No. CC(A)CUS/598/2013 dated 18.10.2013 passed by Commissioner of Customs, (Appeals) NCH, New Delhi, with respect to Order-in-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 fl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 14,43510/- were seized under Section 110 of the Act ibid on the reasonable belief that he same were smuggled into India and were therefore, liable to confiscation under the Act ibid. The two hand bags used for concealing the seized goods were also seized under Section 118 read with 119 of the Customs Act, 1962. The disembarkation slip (Customs portion), Boarding Pass from Hong Kong to Delhi, e-tickets and sales invoice no 07048 dated 03.04.2012 were also taken into possession being relevant to the investigation. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012 and subsequently released on bail. 2.5 In a follow up action, the residential premises H.No.231, W.No.11, Tibba Colony, Ratia, District Fatehabad and the official premises i.e M/S Rich Hood Trading Company Pvt. Ltd, H 3314, Sector 14, Hisar were got searched. Nothing incriminating/objectionable was found from his residence 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 that the invoice does not correspond to the market value and has been obtained to suit the requirements of the Pax. Hence, in order to arrive at the true assessable value, abatement @ 25% on account of statutory taxes/levies, profit margin is given. Therefore the total value of the impugned goods after giving abatement @ 25% works out to ₹ 10,82,633/- 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D 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 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 as: 'Recovery of duties not levied or short-levied or erroneously refunded, 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 er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that no interest is chargeable under Section 125 of the Customs Act which only refers to duty and in view of CESTAT decision of Essar Oil Ltd vs. Commissioner of Customs (Prev), Jamnagar and 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 Order-in-Original dated 05.03.2013 were confiscated under Section 111 (l) (m) ibid with option to redeem the same on payment of redemption fine of ₹ 2,50,000 /- 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 118 119 of the Customs Act, 1962 with the option to the applicant to redeem the same on payment of ₹ 3000/- under Section 125 of the Act ibid. A pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respective of mode of import viz cargo, baggage, post etc. How these goods will be cleared upon import is provided for in separate Sections. While clearance of imported goods is covered under Chapter 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 erroneously 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 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 he should not pay the amount specified in the notice; (b) the person chargeable w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per officer. Section 78 - Determination of rate of duty 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 under Section 12 read with Section 78 of the Act. The applicant has imported the impugned goods chargeable to duty as baggage as laid down under Section 12 of the Customs Act, 1962 and failed to pay the duty at the time of import. He carried the said goods with an intention to evade payment of the Customs duty leviable on these goods. Therefore duty was rightly demanded under Section 28 of the Act ibid and the demand confirmed after following due process of law. When duty was not paid at the time of import, the interest is chargeable on the duty amount where duty has not been paid on the goods in terms of Section 28 AA (now 28AB) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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