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2012 (11) TMI 125 - AT - CustomsConfiscation - Kar Vivad Samadhan Scheme, 1998 (KVSS) - held that - the Scheme has to be given a purposive interpretation and the Scheme cannot be interpreted in a manner so as to defeat the very object and intention of the Scheme. Petitioner cannot claim to pay simply 50% of the duty amount specially when there has been no lis in respect of the same or dispute with regard to it. - existence of a dispute or lis being a sine qua non for the applicability of the Scheme - in addition to 50% of the fine and penalty paid for settlement of the case, the appellant is also liable to pay duty at appropriate rate on the confiscated goods and only on such payment of duty the appellant can redeem the goods. Whether the duty is liable to be paid on the confiscated goods by treating them as baggage under Chapter Heading No. 98.03 of the Customs Tariff Schedule Held that - Smuggled goods cannot be treated as imported goods, the question of classifying them as baggage under Chapter 98 does not arise at all - seizure has not taken place in a customs area - there is no declaration filed in respect of such baggage to apply the rate of duty applicable to baggage on the impugned goods under Section 78 read with Section 77 of the Customs Act - claim of the department to levy duty under Chapter Heading No. 98.03 does not have sufficient legal basis - Diamonds, whether or not worked, but not mounted or set fall under Heading No. 71.02 of the Customs Tariff. Since the goods under seizure are rough as well as cut and polished diamonds, they would be correctly classifiable under Heading No. 71.02 of the Customs Tariff for the purpose of levy Relevant date for the purpose of charging of duty Held that - Payment of duty arises at the time of redemption and the option to redeem the goods was exercised when the fine was paid - whatever was the rate of duty applicable at that time, that is, the date on which the fine was paid and the option to redeem the goods was exercised, will be the relevant date for computing the rate of duty also - appellant will not be eligible for any concessional rate of duty and the duty liability will have to be discharged at the tariff rate applicable to the goods under CTH No. 71.02 - appellants are liable to pay customs duty on the confiscated diamonds at the tariff rate of duty applicable to goods falling under Heading No. 71.02 of the First Schedule to the Customs Tariff Act on the date of payment of fine (date of exercising the option to redeem the goods) in addition to the fine and penalty already settled under the Kar Vivad Samadhan Scheme.
Issues Involved:
1. Whether the benefit of the exemption notification was rightly granted. 2. The impact of the Kar Vivad Samadhan Scheme (KVSS) on the release of the confiscated diamonds. 3. Whether the Baggage Rules were correctly applied for determining the duty payable. Issue-wise Detailed Analysis: 1. Exemption Notification: The Supreme Court held that smuggled goods cannot be considered as imported goods for the purpose of granting exemption under Notification No. 247/76-Cus., dated 2-8-1976. The Court stated, "It would be antithetic to consider that 'smuggled goods' could be read within the definition of 'imported goods' for the purpose of the Act." Consequently, the Tribunal's decision to grant exemption on smuggled diamonds was overturned. 2. Kar Vivad Samadhan Scheme (KVSS): The appellant argued that no duty was determined in the original order dated 3-12-1992, making it not a "tax arrear" under Section 87(m) of the Finance Act, 1998. They claimed that the KVSS settlement covered only the fine and penalty, not the duty. The Tribunal noted that the designated authority's final settlement certificate stated that the declarant could redeem the goods on payment of duty at the appropriate rate. The Bombay High Court had also held that duty must be paid in addition to the redemption fine. The Tribunal concluded that the settlement under KVSS did not cover the duty, and the appellant must pay the duty to redeem the goods. 3. Application of Baggage Rules: The Tribunal found that the goods were not conclusively proven to be imported as baggage. The statement that the diamonds were imported "personally or through carriers by air and by other means" was deemed hearsay. The Tribunal held that the goods could not be classified under Chapter 98.03 as baggage due to the lack of evidence and the Supreme Court's ruling that smuggled goods cannot be treated as imported goods. Instead, the goods were classified under Heading No. 71.02 of the Customs Tariff. Relevant Date for Duty Calculation: The Tribunal determined that the relevant date for duty calculation is the date of payment of the redemption fine, which is when the option to redeem the goods was exercised. The duty should be computed based on the value of Rs. 88,20,050/- as determined by the Commissioner and at the tariff rate applicable under CTH No. 71.02 at the time of redemption. Conclusion: The appellants are liable to pay customs duty on the confiscated diamonds at the tariff rate applicable under Heading No. 71.02 on the date of payment of the redemption fine, in addition to the fine and penalty settled under the KVSS. The appeal was disposed of accordingly.
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