2016 (7) TMI 793 - CGOVT - Customs

Import of baggage without declaring goods - Levy of penalty - carrying contraband or dutiable goods - passing through green channel - Held that - Government notes that not only the applicant attempted to smuggle the impugned goods in substantial quantity but it is also an uncontested fact on record that he also colluded with and abetted with another passenger to facilitate smuggling of the impugned goods. Therefore the applicant has rightly been held as liable for penalty under Section 112 of the Customs Act, 1962. As regards the quantum of penalty Government notes that the fine and penalty imposed by the original authority is commensurate to the value of the goods and is not harsh considering the role of Shri.Gagan Preet Singh in facilitating the smuggling of impugned goods. Keeping in view the gravity of offense and overall circumstances of the case and the value of the impugned goods, the Commissioner (Appeals) has erred in reducing the redemption fine and penalty on the applicant. Government therefore restores the quantum of redemption fine and penalty as imposed by the original adjudicating authority. - Decided in favor of revenue.

Summary

Issues Involved:
1. Valuation of goods.
2. Levy of interest under Section 28AB of the Customs Act, 1962.
3. Reduction of redemption fine and penalty by the Commissioner (Appeals).

Detailed Analysis:

1. Valuation of Goods:
The applicant contested the valuation of the goods, arguing for a 40% abatement instead of the 20% allowed by the appellate authority. The Department contended that the 20% abatement was arbitrary and unjustified. The valuation was based on National Import Data Base (NIDB) data, which the applicant accepted as the true value. The Apex Court has upheld the use of NIDB data for assessment. Since the applicant failed to produce any supporting documents to substantiate the value of the memory cards, the valuation by the adjudicating authority was deemed correct and did not warrant interference.

2. Levy of Interest under Section 28AB of the Customs Act, 1962:
The applicant argued that interest under Section 28AB was not applicable since the goods were seized and there was no short levy or non-levy of duty. However, the government noted that duty is chargeable on all imported goods under Section 12, and the applicant failed to declare the goods under Section 77, thereby violating the provisions. The duty was rightly demanded under Section 28, and interest under Section 28AA/28AB was applicable as the duty was not paid at the time of import. The government found no merit in the argument that no interest is leviable on seized goods, as seizure and confiscation do not absolve the goods from levy of duty and interest.

3. Reduction of Redemption Fine and Penalty by the Commissioner (Appeals):
The Department argued that the reduction in fine and penalty was not justified given the serious nature of the smuggling offense. The applicant, without providing grounds, pleaded for further reduction. The government noted that the applicant not only attempted to smuggle the goods but also colluded with another passenger. The original adjudicating authority's fine and penalty were commensurate with the value of the goods and the gravity of the offense. The Commissioner (Appeals) erred in reducing the fine and penalty, and the government restored the original quantum of redemption fine and penalty.

Conclusion:
The government upheld the original adjudicating authority’s valuation of goods, the levy of interest under Section 28AB, and the original fine and penalty. The Commissioner (Appeals) was found to have erred in allowing abatement on the value of goods and reducing the fine and penalty. The Revision Applications were disposed of accordingly, restoring the Order-in-Original.