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2016 (7) TMI 794 - GOVERNMENT OF INDIA

2016 (7) TMI 794 - GOVERNMENT OF INDIA - TMI - Import of silver / silver coins in a baggage - period of stay less than six months abroad - Held that:- Government observes that the liability of the goods for confiscation cannot be ignored on the mere technical ground that the Section 111 of the Customs Act is not mentioned in the concluding para of the show cause notice. Also it is not the case that the respondent was not put on notice regarding the charges against him. In the present case, exact .....

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ty has clearly held the impugned goods to be liable for confiscation under Section Ill(d) & (o) of the Customs Act, 1962 but did not order for actual confiscation of the goods as the same were already released to the respondent. Further, in terms of Section 112 penalty shall be imposed on a person involved in acts of omission or commission, in relation to any goods which renders such goods liable to confiscation under Section 111 of the said Act, or abets the same, or acquire possession of or is .....

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favor of revenue. - F.No.380/65/B/13-RA - ORDER NO. 39/2016 CUS - Dated:- 28-4-2016 - SMT. RIMJHIM PRASAD, JOINT SECRETARY ORDER: This Revision Application is filed by Commissioner of Customs Bangalore (hereinafter referred to as the Department) against the Order-in-Appeal No. 53/2013 dated 01.02.2013 passed by Commissioner of Customs (Appeals), Bangalore, with respect to Order-in-Original No. 57/2012 dated 13.08.2012 passed by Assistant Commissioner of Customs, BIA, Bangalore. 2. Brief facts o .....

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ment of duty in foreign currency of US $ 210 vide Baggage Receipt No. 2668 C dated 14.07.2011 calculated at the rate of ₹ 1500/- per Kg and 2% of Education Cess and 1% of Secondary and Higher Education Cess on the said rate under Notification No. 172/94 dated 30.09.1994. Further, from the records it is seen that the passenger has left India on 04.07.2011 and has returned to India on 13.07.2011 and also during the period prior to 13.07.2011 he had not stayed abroad for six months. 2.1 In te .....

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rther as per the Antiquities and Art Treasures Act, 1972, no person shall engage in business of selling or offering to sell any antiquities except in accordance with the license granted under the said Act. 2.2 From the facts and circumstances stated above, it was evident that Shri Archie Maru had stayed less than six months abroad and accordingly was not eligible for import of silver in any form in terms of Notification No. 172/1994 cited above. Further, it appeared from the facts that the subje .....

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or any other law for the time being in force, in respect of which the condition is not observed unless the condition was sanctioned by the proper officer shall be liable for confiscation. Further, as per Section 112 (a) read with Section 112 (i), envisages that any person who in relation to any goods does or omits to do any act which act or omission would render goods liable to confiscation under Section 111, shall be liable to penalty. Hence, the 6.2 Kgs of silver coins brought into the countr .....

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l Airport, Bangalore within 30 days of receipt of the Notice, as to why: (i) The 6.2 Kgs of silver coins cleared on payment of duty vide Challan No.2668 C dated 14.07.2011 should not be confiscated under Section Ill(d), and (o) of the Customs Act, 1962, read with Customs Notification No.172/1994 dated 30.09.1994 and the Antiquities and Art Treasures Act, 1972; (ii) Penalty should not be imposed upon him under Section 112 (a) r/w Section 112 (i), of the Customs Act, 1962 and Customs duty @ 36.05% .....

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n Certain Cases) Order, 1993 and Rule 3 of the Baggage Rules, 1998, read with Notification No. 136/1990 Cus dt.20/3/1990, as amended. (ii) It appears that 6.2 Kgs of silver coins imported by Shri Archie Maru is not a bonafide baggage, as defined under the provisions of Section 79 of the Customs Act, 1962, read with the Baggage Rules, 1998. Further, para 2.2 of the Foreign Trade Policy allows only bonafide household goods and personal effects as part of passenger baggage, as per limits, terms and .....

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nafide baggage and accordingly, the aforestated silver coins weighing 6.2 Kgs fall under Customs Tariff Heading 9803 and are liable to be charged to basic Customs duty @ 35% ad valorem in terms of Notification No. 136/90 dated 20.03.1990 and 2% Education Cess & 1% Secondary and Higher Education Cess on the Customs duty. (iv) Shri Archie Maru did not know/furnish the value of the stated goods and also did not have produce any relevant purchase invoice at the time of clearance of the said good .....

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n 35% Rs.1,26,839 + ₹ 3,805 Rs.1,30,644 Para 5 sub Para (i) & (ii) of the SCN dated 18.102011 was substituted by the following sub-paras: i) The benefit of Customs Notification No. 172/94 dated 30.9.94 should not be denied to Shri Archie Maru as the conditions of the said Notification are not fulfilled. (ii) The value of ₹ 3,62,396 /- calculated @ ₹ 58,451/- per Kg on 6.2 Kgs of silver coins imported by Shri Archie Maru, should not be adopted, in terms of Rule 9 of the Cust .....

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hould not be appropriated towards the above amount so determined. iv) Penalty should not be imposed upon him under Section 112(a) read with Section 112(i) of the Customs Act, 1962 for violation of the above provisions of law. 2.5 The show cause notice was adjudicated and the adjudicating authority vide Order-in-Original No. 57/2012 dated 13.08.2012 ordered: a) payment of Customs duty of ₹ 1,30,644/- under Section 28 of Customs Act, 1962. b) appropriation of the Customs duty already paid vi .....

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n 112 of the Customs Act, 1962. 3. Being aggrieved by the said Order-in-Original, respondent filed appeal before Commissioner (Appeals) who vide Order-in-Appeal No. 53/2013 dated 01.02.2013 allowed the appeal of the respondent and set aside the Order-in-Original. 4. Being aggrieved by the impugned Order-in-Appeal, the Department has field this revision application under Section 129 DD of Customs Act, 1962 before Central Government on the following grounds: 4.1 That the passenger has accepted the .....

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mitted need not be proved. That the passenger has admitted the goods to be silver coins and cleared the same as silver coins. That the passenger at the time of appeal cannot claim that the goods are silver coated coins having cleared them as silver coins and it is not proper for the Commissioner (Appeals) to entertain such a contention at this stage. That the findings of Commissioner (Appeals), on valuation of the goods, are based on the contention put forth as a matter of afterthought by the pa .....

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in the Corrigendum dated 19.01.2012, the necessary ingredients to invoke the said provision are clearly brought out in the show cause notice read with the corrigendum. In contention of the same, the applicant has relied upon the following case laws: i) N.B. Sanjana, Asst Collector of Central Excise, Bombay and others vs The Elephinstone Spinning and Weaving Mills Co. Ltd., reported in 1978 (002) ELT 339(SC) ii) Fortune Impex v/s Commissioner- 2004 (067) ELT A134 (SC) iii) Jagson International Lt .....

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needs to be set aside. 5. A show cause notice was also issued to the Respondent on 09.09.2013, in response to which the following submissions have been made: 5.1 That the revision application filed by the Commissioner of Customs, Bangalore is a time barred application. That the date of communication of the order is shown as 18.02.2012 whereas the verification certificate attached with revision application bears the Additional Commissioner's signature of dated 14.05.2013. Moreover the date o .....

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pplication is factually incorrect and is an attempt to twist the true facts. The respondent have never ever accepted the assessment of goods as silver coins and no duty was paid accordingly. The arguement that the benefit under Notification No. 172/94 was extended to the goods is also not true. 5.3 That the baggage receipt no. 2668 dated 14.07.2011 is the only document which reveals the assessment and rate of duty. However, no where it is mentioned on the said document the benefit of Notificatio .....

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basis by the assessing officer. 5.4 That the contention regarding extension of benefit under the Notification No. 172/94 at the time of clearance of goods was neither mentioned in the show cause notice nor in the corrigendum issued to the respondent. In the circumstances that the contention of the applicant at this stage that the passenger had admitted the goods as silver coins is not based on any documentary evidence but also beyond the scope of the show cause notice and the purported corrigend .....

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t most, it could be explained only as a quick method used by the assessing officer to clear the baggage. 5.7 That the contention of the applicant placing reliance on the four judgments of Hon'ble Supreme Court mentioned therein is nothing but misinterpretation of the case laws. After realizing the fact that the proposal made in the show cause notice for confiscation of goods invoking the provisions of Section Ill(d) & (o) of the Customs Act, 1962 would not legally survive. The applicant .....

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the specific laws proposing the confiscation of goods'. That the judgments of the Hon'ble Supreme Court relied on by the applicant are not relatable to the facts of the present case and the said judgments would not come in handy for establishing the case of the revision applicant. That the show cause notice and the corrigendum issued are materially different and that fact has been properly appreciated by the Commissioner (Appeals). 5.8 That the Commissioner (Appeals) was perfectly justi .....

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be pleased to: a) Adjudge the question of maintainability of the revision application as a preliminary issue, basing on the contention of limitation of time and a further reasons mentioned above. b) Abstain from annulling the order in appeal and from passing any other order, which are detrimental to the interest off respondent. c) To dismiss the revision application upon proper appreciation of the facts and question of law involved in the case. 6. An application for condonation of delay in filin .....

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lay of 01 day in filing the appeal against the impugned Order-in-Appeal No. 53/2013 dated 01.02.2013/13.02.2013. 6.3. That the applicant is seeking condonation of delay in filing the appeal against the Order-in-Appeal No. 53/2013 dated 01.02.2013/13.02.2013 on the grounds that the applicant was engaged in other administrative matters i.e Annual General Transfers in the month of May, 2013. 7. Personal hearing was scheduled in this case on 03.092015, 18.092015 & 13.10.2015 and was attended by .....

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ulated period of three months under Section 129DD (2) of the Customs Act 1962, as the Department has filed the Revision Application 02 days after initial stipulated period of three months. 9.1. Government observes that Rule 129DD (2) reads as under: "(2) An application under sub-section (1) shall be made within three months from the date of communication to the applicant of the order against which the application is being made: Provided that the Central Government may, if it is satisfied th .....

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12-Cus.Prev dated 23.03.2016 informed that they are seeking condonation of delay of 01 day in filing the appeal against the impugned Order-in-Appeal No. 53/2013 dated 01.02.2013/13.02.2013 on the grounds that the applicant was engaged in other administrative matters i.e. annual general transfers in the month of May, 2013. 9.2. From a perusal of records, Government observes that the Revision Application dated 14.05.2013 was received on 21.05.2013 whereas the impugned Order-in Appeal was received .....

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d imported 6.2 kgs of silver coins as baggage. The said silver coins, which are antiques in as much as they were more than 100 years old, were cleared on payment of duty in foreign currency of US $ 210 vide Baggage Receipt No. 2668 C dated 14.07.2011 calculated at the rate of ₹ 1500/- per Kg and 2% of Education Cess and 1% of Secondary and Higher Education Cess on the said rate. A show cause notice dated 18.10.2011 and corrigendum dated 19.01.2012 was issued to the respondent demanding dut .....

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.07.2011 to the Government account, payment of differential Customs duty along with applicable interest with effect from 14.07.2011 under Section 28 of Customs Act, 1962, held the impugned goods liable for confiscation under Section Ill(d), Ill(o) of the Customs Act, 1962 and imposed personal penalty of ₹ 35,000/- on Shri Archie Maru under Section 112 of the Customs Act, 1962. Commissioner (Appeals) vide impugned order allowed the appeal of the respondent and set aside the Order-in-Origina .....

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r Section 112 ibid is imposible. 12. Government notes that the Department in its grounds of revision has stated that the passenger himself has accepted the assessment of the impugned goods as silver coins valued at ₹ 3,62,396/- which were cleared on payment of duty in terms of Notification No. 172/94 dated 30.9.94 at ₹ 1500/kg along with applicable cess. The respondent accepted the value of coins at ₹ 3,62,396/- under Rule 9 of Customs Valuation Rules, 2007 read with Section 14 .....

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amounting to USD 210. The duty payment receipt bears the signature of the respondent and there is no evidence on record to show that he paid the duty under duress or not of his free will. In fact the respondent had signed the duty payment receipt in token of having accepted the description of goods as silver coins besides levy of duty of USD 210 at the rate of ₹ 1500 per kg on 6.2 kgs of silver coins in convertible foreign currency (which is as per Notification No. 172/94). Therefore, Gove .....

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proved. Government finds that the impugned goods have rightly been assessed as silver coins. 13. The Department has contended that the Commissioner (Appeals) failed to appreciate that Section 28 of the Customs Act, 1962 does not make challenge of assessment as a pre-requisite for the demand of duties short levied, not levied etc. 13.1 Section 28 of the Act ibid reads as under: 'Section 28-Recovery of duties not levied or short-levied or erroneously refunded-(1) Where any duty has not been, .....

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him to Show Cause why he should not pay the amount specified in the notice; (b) the person chargeable with the duty 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". From a plain reading of the above provisions Government observe .....

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he Hon'ble Supreme Court in the case of Union of India vs Jain Shudh Vanaspati Ltd 1996(86) ELT 460 (SC) where the Apex Court held that show cause notice under Section 28 of the Customs Act, 1962 for demand of duty can be issued without revising the assessment order. Commissioner (Appeals) has thus erred in holding that challenge of assessment order is a prerequisite for raising demand for non levy, short levy of duty. 13.3 Government notes that the impugned goods were cleared on payment of .....

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14. Commissioner (Appeals) has also held that if proposal for confiscation is not made in the show cause notice the offended goods cannot be confiscated. Government observes that the show cause notice dated 18.10.2011 read with corrigendum dated 19.01.2012 clearly describes the violations made by the respondent under Section 111 (d) and (o) of the Customs Act, 1962. The respondent in the present case stayed abroad for less than 6 months and was accordingly not eligible for import of silver as ba .....

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with reasons thereof. 14.1 In this regard, Government observes that the liability of the goods for confiscation cannot be ignored on the mere technical ground that the Section 111 of the Customs Act is not mentioned in the concluding para of the show cause notice. Also it is not the case that the respondent was not put on notice regarding the charges against him. In the present case, exact nature of the contravention has been clearly spelt out in the show cause notice. Government places reliance .....

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