2016 (7) TMI 420 - CGOVT - Customs

Import of goods - passing through green channel without making declaration of baggage - he was having some electronic goods, liquor bottles and one Samsung TV. - passenger had brought commercial quantity of goods with intention to be sold in India for monetary consideration. Being a carrier of the goods it attracts the provisions of Section 2(39) of the Customs Act, 1962 and made the goods liable for confiscation under Section Ill(i), (l) and (m) of the Customs Act, 1962 and render the passenger liable for penalty under Section 112 of the Act, ibid. Held that - Government further observes that it is a material fact on record that passenger is a frequent traveller and habitual offender and has two previous cases booked against him. From the facts of the case Government notes that the applicant not only contravened the provisions of Section 79 of the Customs Act, 1962 but also contravened the provisions of Section 77 of the Act, ibid by not giving the true declaration as required under the Act, ibid which makes him ineligible for grant of baggage allowance as the impugned goods cannot be treated as bonafide baggage. Hence, Government opines that granting the benefit of free allowance by Appellate Authority is not proper and correct. As regards the valuation issue the applicant has relied upon value of electronic goods of different make and model Government notes that in absence of any documentary evidence produced by the applicant relevant for the television set such as purchase invoice etc. Government sets-aside the impugned Order-in-Appeal and restores the Order-in-Original in toto. - Decided in favor of revenue.

Issues Involved:
1. Valuation of the impugned goods.
2. Granting of free allowance to the passenger.
3. Penalty and redemption fine imposed on the passenger.
4. Habitual offender status of the passenger.
5. Delay in filing the Revision Application.

Issue-Wise Detailed Analysis:

1. Valuation of the Impugned Goods:
The applicant was intercepted at Trichy Customs Airport carrying various electronic goods and other items. Upon inspection, the goods were valued based on a market survey due to the lack of documentary evidence provided by the applicant. The applicant contested the valuation, arguing that the assessment should not be based on prevailing market prices, which include duty and profit margins. The applicant requested a 40% abatement from the market price to arrive at the assessable value. However, the Government upheld the Department's valuation method, noting that the applicant failed to provide relevant purchase invoices or other documentary evidence to support his claim. The Department's approach of deducting permissible amounts from the market price was deemed appropriate under the Customs Valuation Rules, 2007.

2. Granting of Free Allowance to the Passenger:
The Commissioner (Appeals) had granted the applicant full free allowance on the TV, directing recalculation of duty and imposition of fine and penalty accordingly. The Department contested this, arguing that the applicant, being a frequent traveler and habitual offender, should not be granted the free allowance as per Section 79 of the Customs Act, 1962, and the Baggage Rules, 1998. The Government agreed with the Department, noting that the applicant's failure to declare the value of the goods and his status as a habitual offender disqualified him from receiving the free allowance. The benefit of free allowance granted by the Appellate Authority was deemed improper and incorrect.

3. Penalty and Redemption Fine Imposed on the Passenger:
The Order-in-Original imposed a penalty of Rs. 15,000 under Section 112 of the Customs Act, 1962, and a redemption fine of Rs. 51,000 under Section 125 of the Act. The applicant argued that the goods were bona fide and should be released unconditionally on payment of duty without any fine or penalty. The Government, however, found no merit in this plea, emphasizing that the applicant attempted to smuggle goods without declaring them and had a history of similar offenses. The imposition of fine and penalty was upheld as justified.

4. Habitual Offender Status of the Passenger:
The Department highlighted that the applicant had a history of previous offenses and was a frequent traveler, bringing commercial quantities of goods. This status was a critical factor in denying the free allowance and imposing penalties. The Government acknowledged the applicant's habitual offender status, noting it as a material fact that influenced the decision to uphold the penalties and deny the free allowance.

5. Delay in Filing the Revision Application:
The applicant filed the Revision Application with a delay of 41 days, citing ignorance of the appeal process and financial hardship. The Government condoned the delay, considering it within the condonable limit under Section 129 DD(2) of the Customs Act, 1962, and proceeded to decide on the merits of the case.

Conclusion:
The Government set aside the Order-in-Appeal and restored the Order-in-Original in toto, thereby upholding the valuation of the goods, denying the free allowance, and maintaining the penalties and fines imposed on the applicant. The Revision Applications were disposed of accordingly.

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