9911796707
TMI Blog2010 (1) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... as shown as as per invoice . The details regarding weight, no. of pieces and dimensions was left blank. The three parcels were opened and found to contain various models of Nokia brand and Samsung brand mobile phones. The department was of the view that since the value, description and nature of the goods were not declared properly, those were liable to confiscation under Section 111(m) of the Customs Act, 1962 (hereinafter called the Act ). Therefore, pieces of various brands of mobile phones of foreign origin and 81 pieces of handsets and 53 pieces of CD of Nokia valued at Rs. 16,82,587/- were seized under Section 110 of the Act. The seized goods were disposed off under Section 110(1A) as the appellant did not opt to get the goods provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te a bank guarantee for 25% of the value and they were willing to execute bank guarantee only for 25% of the duty, even though they had intimated to the department to this effect, the goods were disposed of subsequently. The learned advocate submits that in this case first of all there was no mis-declaration at all and based on incomplete declaration goods were seized. In fact incomplete declaration was also not made by the appellant. Therefore, he submits that the confiscation was not warranted and is required to be set aside. The second submission he makes is that once the confiscation is ordered and redemption fine is imposed, the department is duty bound to return the goods. In the absence of the goods, appellant cannot be compelled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been already cleared and disposed of, no redemption fine can be imposed. Learned DR on the other hand submits that the order passed by the Commissioner (Appeals) has discussed all the factors relating to confiscation under Section 111 (m) and he also has distinguished the case law cited before the learned Commissioner (Appeals) and therefore seeks that the order of the Commissioner (Appeals) may be upheld. 4. We have considered the submissions made by both the sides. As regards liability to confiscation under Section 111(m) we find that order of the Commissioner (Appeals) is required to be upheld. As rightly pointed out by the Commissioner (Appeals), label or declaration accompanying the goods are to be treated as entry irrespective of wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfiscation. In this case, the goods were disposed of by the department and the cash proceeds were available with the department. It is settled law as held by the Apex Court that where goods have been provisionally released, confiscation can be done even though goods may not be available for confiscation. An analogy can be drawn to this settled legal proposition with the present situation. In this case also goods are not available but cash is available with the Department which can be held to mean that Department is in possession of goods but in the form of cash. Therefore, the confiscation upheld by the Commissioner is definitely in order. Once confiscation is upheld, the redemption fine also has to be upheld. As regards quantum of redempti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turally the customs department would have insisted that the duty amount is required to be calculated treating the amount realized as a cum duty price. Therefore, we hold that the value for the purpose of collection of customs duty in this case would have to be the amount realized by the customs department after disposing of the goods in auction. Before parting it is also required to be mentioned that an impression was given and an impression arises from the memorandum of appeal that department disposed of the goods without proper notice to the appellant. However, we find from the show cause notice wherein the details of correspondence have been given which show that appellants had been clearly intimated by the Assistant Commissioner that if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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