2016 (5) TMI 1210 - CGOVT - Customs

Smuggling of memory cards in unaccompanied baggage - Whether the impugned goods as held by the adjudication authority liable for absolute confiscation have been righty allowed to be released on payment of redemption fine and penalty by the Commissioner (Appeals) and whether penalty imposed on the respondents been rightly reduced or not - Held that - the impugned goods are in commercial/trade quantity and do not constitute bonafide personal effects under Section 79 ibid read with the EXIM policy in force and the passenger neither made a true declaration of the goods nor declared true quantity and value. therefore, he contravened the provisions of Section 77 and 79 of the Customs Act. In terms of CBEC s Circular No. 29/200-Cus dated 11.04.2000 import of goods in commercial quantity would not be permissible within the scope of baggage rules, ever on payment of duty. The respondent was not eligible to import the impugned goods and were imported in gross violation of the provisions of the Customs Act and Foreign Trade (Development and Regulatory) Act and would appropriately constitute prohibited goods liable for confiscation under Section (i),(I) & (m) ibid. Therefore, government upholds Department s contortion that absolute confiscation is legally warranted keeping in view the facts and circumstance of the case. The appellate authority had completely ignored the fact that Shri Shamsuddin Malik was the carrier of the impugned goods and he brought the goods on behalf of Shri Didar Singh for monetary gain. The no objection given by Shri Didar Singh to Shri Shamsuddin Malik was nothing but an afterthought to escape from the penal action at the hands of Customs Authorities Government, therefore, holds that in the present case the goods imported by the passenger as a carrier are liable for absolute confiscation as rightly pleaded by the department. Hence, the original adjudicating authority has rightly ordered absolute confiscation of the impugned goods and that the commissioner (Appeals) has erred in allowing releasing of the impugned goods on payment of redemption fine and reduced penalty. Government further notes that commissioner (Appeals) in his order has held that since the baggage rate of duty was levied on the impugned goods which inbuilt contains the provision of penalty also, it justifies the reduction of penalty amount imposed by the adjudicating authority. Government is not inclined to accept the averments of appellate authority as the baggage was cleared under rule 9 of Baggage Rules, 1998 as amended which deals with the provision for clearance of unaccompanied baggage wherein the baggage rate of duty is liveable which was statutory requirement under the Customs Act, 1962. Government further observes that facts on record clearly established the collusion in outright smuggling activities by Shri Didar Singh with Shri Shamsuddin Malik (main accused) and his abetment of such actions and both have indulged in smuggling of goods by way of outright concealment and mis-declaration as part of unaccompanied baggage. Therefore, the justification of appellate authority in reducing the penalty is not tenable and Government restores the penalty amount as imposed by the original authority on both the respondents. - Revision applications allowed in favor of revenue.

Summary

Issues Involved:
1. Classification of goods as prohibited.
2. Legality of releasing smuggled goods on payment of redemption fine.
3. Appropriateness of reducing penalties imposed on the respondents.

Issue-wise Detailed Analysis:

1. Classification of Goods as Prohibited:
The applicant contended that the Commissioner (Appeals) erred in holding that the impugned goods were not prohibited. The goods were imported in commercial quantities under the guise of personal effects, which violates Section 2(33) of the Customs Act, 1962. According to the Exim Policy, 2009-14, commercial goods cannot be imported as baggage. Therefore, the goods should be classified as prohibited since the conditions for their import were not met.

2. Legality of Releasing Smuggled Goods on Payment of Redemption Fine:
The applicant argued that the Commissioner (Appeals) erred in releasing the smuggled goods on payment of redemption fine. The respondent, Shri Shamsuddin Malik, admitted under Section 108 of the Customs Act, 1962, that he was merely a carrier and not the owner of the goods. Established legal precedents dictate that seized goods cannot be released to a person who has admitted to not owning them. The adjudicating authority had correctly ordered the absolute confiscation of the goods, and the Commissioner (Appeals) failed to appreciate this fact.

3. Appropriateness of Reducing Penalties Imposed on the Respondents:
The applicant contended that the Commissioner (Appeals) erred in reducing the penalties imposed on the respondents. The adjudicating authority had imposed penalties of Rs. 10,00,000 on Shri Shamsuddin Malik and Rs. 15,00,000 on Shri Didar Singh under Section 114AA of the Customs Act, 1962. The Commissioner (Appeals) reduced these penalties to Rs. 1,00,000 and Rs. 2,00,000, respectively. The applicant argued that the penalties should act as a deterrent and that the reduction was unjustifiable.

Judgment:
The Government reviewed the relevant case records, oral and written submissions, and the impugned Order-in-Original and Order-in-Appeal. It was observed that the goods, valued at Rs. 31,07,178, were in commercial quantities and not bona fide personal effects. The goods were misdeclared and imported in violation of Sections 77 and 79 of the Customs Act. The import of goods in commercial quantities is not permissible under the baggage rules, as per CBEC Circular No. 29/200-Cus dated 11.04.2000, and the Supreme Court's decision in Om Prakash Bhatia vs Commissioner of Customs, Delhi.

The Government upheld the Department's contention that absolute confiscation was warranted. The goods belonged to Shri Didar Singh, and Shri Shamsuddin Malik was merely a carrier. The no-objection given by Shri Didar Singh was considered an afterthought to escape penal action. The appellate authority's decision to release the goods on payment of redemption fine was deemed erroneous.

The Government also noted that the Commissioner (Appeals) erred in reducing the penalties. The justification that the baggage rate of duty includes a penalty component was not accepted. The facts established collusion in smuggling activities, and both respondents indulged in smuggling by concealment and misdeclaration. The penalties imposed by the original adjudicating authority were restored.

Conclusion:
The Government set aside the impugned Order-in-Appeal as illegal and improper and upheld the Order-in-Original in toto. The revision application was allowed, and the penalties and absolute confiscation ordered by the original authority were reinstated.