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2015 (12) TMI 586 - AT - CustomsSmuggled goods from NEPAL - Evidence - Valuation - Foreign origin mobile phones were classified in CTH 8517 for the purpose of assessment and were admitted subject to MRP based assessment under Section 4A - Confiscation of goods - Imposition of redemption fine and penalty - Held that - There is force in the contention of the appellants that mobile phones are not notified under Section 123 of the Customs Act, 1962 and therefore the onus is on Revenue to prove that the impugned goods were smuggled. - Only ground on which the goods are held to be smuggled is that the Bills of Entry produced by M/s. Gold Manner Overseas and M/s. Waho Wireless Pvt. Ltd. did not cover the impugned goods. In this regard, it is pertinent to mention that the Bills of Entry filed for import of mobile phones do not mention details of individual mobile phones. Once the goods are in the open market, it is the onus of Revenue to establish with sustainable evidence that these goods were smuggled in any sense other than that they did not carry MRP. We find that Revenue has not been able to discharge this onus. Even if the appellants had not produced any Bills of Entry to show the licit import of the impugned goods, they would not have been worse of because it is Revenue s onus to establish smuggled nature of goods and there is no evidence in the Show Cause Notice or in the impugned order which even prima facie discharged that onus. Valuation - It has clearly been brought out that no such MRP was printed on the impugned mobiles and therefore their import and clearance were in violation of provisions of Exim policy which rendered them liable to confiscation under Section 111(d) ibid. In the case of Pacific India Trade Concern Vs. CC (Prev) 2014 (3) TMI 675 - DELHI HIGH COURT , Delhi High Court held that in case of goods which required MRP to be declared on the goods, non-declaration of MRP results in violation of Foreign Trade Policy and rendered the goods liable to confiscation. Twenty nine Cartons of mobile phones remained unclaimed and therefore their absolute confiscation is clearly sustainable. Regarding mobile phones which were claimed, we find that an option was given to the claimants to redeem the same on redemption fine, which was about 20% of the value of the goods, which in our view is not unreasonable or arbitrary having regard to the nature of the goods and therefore does not warrant appellate intervention. Penalties imposed on the claimants-appellants are on the higher side and need to be suitably moderated. Similarly, M/s. Gold Manner Overseas and M/s. Waho Wireless Pvt. Ltd. have claimed that they had imported these goods which became liable to confiscation in the absence of MRP thereon. Therefore, they are liable to penalty under Section 112 ibid. Shri Arun Kumar Gupta has admitted that he was concerned in carrying and transporting the impugned goods as he collected them from various persons in Delhi before they were loaded in SLR van. He was regularly doing so and therefore there was no way that he was not aware that the goods did not carry the MRP which rendered them liable to confiscation and so he is liable to penalty - Appeal disposed of.
Issues Involved:
1. Confiscation of seized goods. 2. Imposition of penalties under Section 112 of the Customs Act, 1962. 3. Onus of proving the smuggled nature of goods. 4. Compliance with MRP declaration requirements. Detailed Analysis: Confiscation of Seized Goods: The appeals challenged the Order-in-Original No.03/2012, which ordered the confiscation of 77 cartons of Chinese mobile phones and other goods valued at Rs. 96,40,150/- under Section 111(b) and (d) of the Customs Act, 1962. Out of these, 29 cartons remained unclaimed and were confiscated absolutely. The remaining cartons were given an option for redemption upon payment of a fine within thirty days as per Section 125 of the Customs Act, 1962. Imposition of Penalties under Section 112: Penalties were imposed on various individuals and entities involved, with amounts ranging from Rs. 50,000 to Rs. 10,00,000. These penalties were based on their roles in the handling and transportation of the goods, which were deemed illicitly imported. Onus of Proving the Smuggled Nature of Goods: The appellants argued that mobile phones are not notified under Section 123 of the Customs Act, 1962, thus placing the burden of proving the smuggled nature of goods on the Revenue. The Revenue's primary contention was that the Bills of Entry provided did not cover the impugned goods, and the absence of MRP on the goods indicated their smuggled nature. However, the Tribunal found that the Revenue failed to discharge its onus of proving the smuggled nature of the goods with sustainable evidence. Compliance with MRP Declaration Requirements: The Tribunal noted that the seized mobile phones did not comply with the requirement to carry MRP as mandated by the "General Notes regarding Import Policy." This non-compliance rendered the goods liable to confiscation under Section 111(d) of the Customs Act, 1962. The Tribunal upheld the confiscation of the unclaimed cartons and the option for redemption of the claimed cartons on payment of a fine. Conclusion: The Tribunal upheld the confiscation order but modified the penalties imposed. The penalties on Shri Virendra Kumar Pandey and Shri Mukesh Kumar were set aside, as they were mere employees without knowledge of the goods' liability to confiscation. Penalties on proprietors were also set aside where their firms had already been penalized. For the remaining appellants, the penalties were reduced as follows: - Shri Arun Kumar Gupta: Rs. 50,000/- - M/s. Hari Om Couriers: Rs. 50,000/- - Shri Nitin Bansal: Rs. 2,00,000/- - Shri Dharmender Bansal: Rs. 2,00,000/- - M/s. Gold Manner Overseas: Rs. 2,50,000/- - M/s. Waho Wireless Pvt. Ltd.: Rs. 2,50,000/- - Shri Jasbir Singh: Rs. 1,25,000/- - Shri Vimal Shukla: Rs. 50,000/- - Shri Saurabh Agarwal: Rs. 37,500/- - Shri Pradeep Kumar: Rs. 1,75,000/- The appeals were disposed of on these terms.
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