9911796707
TMI Blog2020 (10) TMI 1138X X X X Extracts X X X X X X X X Extracts X X X X ..... ce (DRI), on the basis of specific information received by them, intercepted the appellants, namely, S/ Shri Noor Alam, Roz Mohammed, Sarfaraz Mohammed and Rajab Ali at Netaji Subhash Chandra Bose International Airport, Kolkata on 03.10.2015. It was found that the said appellants were carrying high value electronic items, like, Mobile phone sets of different reputed brands, Sandisk pen drives, USB flash drives, RAM cards, Laptops, Watches of foreign origin in their checked in baggage; they have walked through the Green Channel and have not declared the goods, which cannot be considered personal baggage, being in commercial quantity. 2. During investigation, it was also found that the appellants have smuggled the goods on previous occasions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17, while setting aside the penalties at Sl. No. (iii) above, held that the penalties were imposed on an assumption and this cannot be sustained; the Hon'ble High Court, however, given liberty to the appellants to file appeal against the confirmation of confiscation, redemption fine and penalties as at Sl. No. (i) & (ii) above. Hence the present appeals. 3. The Learned Counsel for the appellants submits that the DRI has erred in arriving at the value of the goods on the basis of prices allegedly available on the internet, ignoring the fact that the said items are available in open market in India at considerably lower prices. He submits that in terms of Section 112, in case the goods are not prohibited, the penalty imposable is not exceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hichever is greater. The Learned Authorised Representative also submits that the learned Commissioner has observed that the goods are freely importable only to mean thereby that there are no restrictions imposed on the impugned goods in terms of the Policy or under any other law for time being in force. However, by the deeming provisions contained in Section 2 (33) of the Customs Act, 1962, the goods assumed the character of being prohibited goods and thus penalties levied were justified. 5. At this juncture, the Learned Counsel for the appellants, submits that as per the Hon'ble High Court of Calcutta, the goods cannot be considered as prohibited goods. Hon'ble High Court held, in the case of Gopal Saha Vs Union of India reported in 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods seized from the 4 appellants respectively. On-going through such Annexure, we do not find that though the Annexures contain details like description, Model, make, country of origin. However, the addresses of web sites from where the values are taken are not mentioned. Copies or screenshots of websites displaying the value of the products is not also made available. Similarly, there was no reasoning, for adoption of such values and the Rules under which the same is arrived at, has been given either in the SCN or OIO. Therefore, we find that it is not possible for anyone to verify the claim of the department. This certainly amounts to violation of principles of natural justice and for that reason itself, in addition to the arbitrar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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