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Shri Jaswinder Singh Versus Commissioner of Customs, Airport, Kolkata

2016 (7) TMI 792 - GOVERNMENT OF INDIA

Import of baggage without declaring the goods - passing through green channel - carrying goods on behalf of others - waiver of pre-deposit - Held that:- Government finds nothing on record to show that the said stay order of Commissioner (Appeals) for depositing an amount of ₹ 15000/- towards the penalty amount has been challenged before any forum and has thus attained finality and needs to be complied with. The applicant failed to comply with the directions of the Commissioner (Appeals) un .....

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peal No.26/Cus (Bag), Kol(AP)/2013 dated 30.10.2013 passed by Commissioner of Customs, (Appeals) Kolkata with respect to Order-in-Original No. 23/2012 dated 29.12.2012 passed by Additional Commissioner of Customs, All-Jl NSCBI Airport, Kolkata. 2. Brief facts of the case are that on 10.05.2007, Shri Jaswinder Singh travelled from Bangkok to Kolkata with assorted garments, mobile phones with accessories, micro SD adapters with memory card, mobile phone batteries etc. along with Indian currency &# .....

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ns were issued to each of the seven passengers but only Shri Jaswinder Singh appeared giving credence to the fact that all the goods belonged to him alone. It was also felt that these goods were brought for commercial benefit. 2.1. Accordingly, the Additional Commissioner of Customs, Kolkata Airport passed the order vide Order-in-Original No. 23/2012 dated 29.12.2012 and ordered: (i) confiscation of the impugned goods under Section Ill(d), (j) and (l) of the Customs Act, 1962 with an option to r .....

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under Section 129 E of the Customs Act, 1962. The applicant failed to comply with the conditions laid down under the Stay Order. Therefore the Commissioner (Appeals) vide Order-in-Appeal No. 26/Cus (Bag)/Kol(AP)/2013 dated 30.10.2013 disallowed the appeal filed by the applicant for non-compliance of the conditions of stay granted. 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 Governm .....

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unequivocal language explained the undue hardship that the applicant was having to arrange the sum of ₹ 15,000/- coupled with the fact that the applicant was facing prosecution under Section 135 of Customs Act, 1962 before a Court of Law for baggage valued at ₹ 2,17,725/- should by itself been a ground for the Commission of Customs (Appeals) to waive the condition of pre-deposit of the penalty prior to hearing of the appeal on its merit. 4.3. That Commissioner (Appeals) being an app .....

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adjudication authority. 4.4. That the refusal of the Commissioner (Appeals) to take up the applicant's appeal on its merits goes to portray a likely hood of a bias and impartiality towards the department and was interested in obtaining a particular result. 4.5. That the Commissioner (Appeals) prior to rejection of the applicant's appeal for non-compliance of the pre-deposit of the penalty was however legally and morally bound to examine the legality, propriety and correctness of the said .....

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in as much as the settled position of law is that appeal as a whole is liable to be dismissed for failure of the applicant to deposit the amount of penalty. That there is no specific provision in Section 129E that in the case where the applicant fails to pre-deposit the amount of penalty, the appeal should be dismissed. 5.2. That the appeal filed before Commissioner (Appeals) was against Order-in Original issued after adjudication under quasi judicial proceedings. That the criminal proceeding l .....

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discretion, dispensed with such deposit of the penalty is very much in violation of the conditions laid down in terms of Section 129E. 5.5. That the hearing memo of the Commissioner (Appeals) states that waiver of pre-deposit will be considered before hearing of the petition and in the present case, Commissioner after considering the waiver application rejected the petition, which is in accordance with law. 6. Personal hearing was scheduled in this case on 11.01.2016 and 27.01.2016. The applican .....

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icants baggage of ₹ 2,17,725 /- is lying in the custody of the Customs authorities under D/R no. 28/07 AIU dated 10.05.2007 in which a sum of ₹ 25,000/- Indian currency is also in the custody of the department. That the revision application be taken up for hearing on its merits for final disposal. 6.2. That the applicant during the adjudication proceedings had requested for having his seized baggage examined and value thereafter to be re-determined but the same was not acceded to by .....

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at the none of the items imported by the applicant in the mode of baggage were banned or prohibited in nature nor notified in terms of Chapter - IV A of the Customs Act, 1962 or did attract the provisions of Section 123 of the stature, so as to invoke Section 104 of Customs Act, 1962 for his arrest and ultimately for the sanction of the prosecution under Section 135 (1) a & b (i) of the Customs Act, 1962. 7. Government has carefully gone through the relevant case records available in case fi .....

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on. These passenger claimed to be carrying these goods on behalf of Shri Jaswinder Singh. Since none of them could produce licit documents relating to lawful acquisition and importation of the impugned goods, the said goods were seized under Section 110 of the Customs Act, 1962. The Additional Commissioner of Customs, Kolkata Airport passed the Order-in-Original No. 23/2012 dated 29.12.2012 and ordered for confiscation of the impugned goods under Section Ill(d), (i) and (l) of the Customs Act, 1 .....

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ion 129E of the Customs Act, 1962. The applicant failed to comply with the conditions laid down under the Stay Order. Therefore the Commissioner (Appeals) vide Order-in-Appeal No. 26/Cus (Bag)/ Kol(AP)/2013 dated 30.10.2013 disallowed the appeal filed by the applicant for non-compliance of the conditions of stay granted. Now the applicant has filed this Revision Application before Central Government under Section 129DD of the Customs Act, 1962 on the grounds mentioned at para 4 above. 9. Governm .....

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l, pending the appeal, deposit with the proper officer the [duty and interest] demanded or penalty levied; Provided that where in any particular case, the [Commissioner (Appeals)] or the Appellate Tribunal is of opinion that the deposit of [duty and interest] demanded or penalty levied would cause undue hardship to such person, the [Commissioner (Appeals)] or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose s .....

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decided by Order-in-Stay no. 27/Cus(Bag)/Kol(AP)/2013 dated 19.08.2013 and stay was granted, subject to deposit of an amount of ₹ 15,000/- towards the penalty amount on or before 19.09.2013 under Section 129 E of Customs Act, 1962. The applicant was informed that subject to compliance with the above direction, the appeal will be heard on merits and was further informed that in case they fail to comply with the aforesaid conditions of stay on or before the due date, their appeal is liable .....

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