2016 (7) TMI 794 - CGOVT - Customs

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 nature of the contravention has been clearly spelt out in the show cause notice. Government notes that the applicant has also contended that the Commissioner (Appeals) has erred in setting aside the penalty imposed by the original adjudicating authority under Section 112 of the Act, ibid on the grounds that goods are not liable for confiscation. Government observes that Section 111 of Customs Act, 1962 deals with confiscation of improperly imported goods. In this case the original authority 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 in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under the said Section 111. As Commissioner (Appeals) has erred in holding that the goods have not been held to be liable for confiscation, Government thus holds that penalty is rightly imposed under Section 112 of the Act ibid by the original authority. - Decided in favor of revenue.

Issues Involved:

1. Valuation of the goods as silver coins vs. silver-coated coins.
2. Eligibility for concessional duty under Notification No. 172/1994.
3. Requirement of challenging the assessment order under Section 28 of the Customs Act, 1962.
4. Proposal for confiscation of goods under Section 111 of the Customs Act, 1962.
5. Imposition of penalty under Section 112 of the Customs Act, 1962.
6. Condonation of delay in filing the revision application.

Detailed Analysis:

1. Valuation of the Goods as Silver Coins vs. Silver-Coated Coins:

The Department contended that the respondent had accepted the assessment of the goods as silver coins and paid duty accordingly. The respondent argued that he never accepted the assessment as silver coins. The Government observed that the duty payment receipt described the goods as "silver faded coins (study purpose)" and was signed by the respondent, indicating acceptance of the assessment. Therefore, the contention that the respondent did not accept the assessment of the goods as silver coins was deemed untenable.

2. Eligibility for Concessional Duty under Notification No. 172/1994:

The respondent was not eligible for the concessional duty under Notification No. 172/1994 as he had not stayed abroad for the required six months. The Government held that the differential duty was rightly demanded under Section 28 of the Customs Act, 1962, as the respondent did not fulfill the conditions for the concessional rate.

3. Requirement of Challenging the Assessment Order under Section 28 of the Customs Act, 1962:

The Commissioner (Appeals) had held that challenging the assessment order was a prerequisite for raising a demand for short-levied duty. The Government disagreed, stating that Section 28 allows for the recovery of duties not levied or short-levied without the need for a review order. This interpretation was supported by the Supreme Court ruling in Union of India vs. Jain Shudh Vanaspati Ltd.

4. Proposal for Confiscation of Goods under Section 111 of the Customs Act, 1962:

The Commissioner (Appeals) held that goods could not be confiscated without a specific clause proposing confiscation in the show cause notice. The Government observed that the show cause notice and corrigendum clearly described the violations under Section 111 (d) and (o) of the Customs Act, 1962. The liability for confiscation could not be ignored on the technical ground of non-mention in the concluding para of the show cause notice. This view was supported by various judicial precedents.

5. Imposition of Penalty under Section 112 of the Customs Act, 1962:

The Commissioner (Appeals) had set aside the penalty imposed under Section 112, stating that the goods were not liable for confiscation. The Government held that the original authority had rightly imposed the penalty as the goods were held liable for confiscation under Section 111 of the Customs Act, 1962, even though actual confiscation was not ordered since the goods had been released.

6. Condonation of Delay in Filing the Revision Application:

The Department filed the revision application two days after the initial three-month period. The Government observed that the delay fell within the condonable limit of three months under Section 129DD (2) of the Customs Act, 1962, and condoned the delay, allowing the issue to be decided on merits.

Conclusion:

The Government set aside the order of the Commissioner (Appeals) and restored the Order-in-Original, thereby allowing the revision application filed by the Department. The impugned goods were rightly assessed as silver coins, the differential duty was correctly demanded, and the penalty under Section 112 was appropriately imposed.

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