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TMI Blog2013 (8) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... warranted – order set aside – decided partly against revenue - C/107/06 - A/10604/2012-WZB/AHD - Dated:- 10-4-2013 - Mr. M.V. Ravindran and Mr. H.K. Thakur, JJ. For the Appellant: Mr. P. P. Jadeja (Consultant) For the Respondent: Mr. K. Shiv Kumar (A.R.) JUDGEMENT Per: M.V. Ravindran: 1. This appeal is directed against Order in Appeal No. 100/2006-AHD/CUS/COMMR (A)/AHD dated 27/11/2006. 2. The facts in brief are that the appellant imported 1926 pieces of silver jewelry weighing 9.300 kilograms through Foreign Post Office. On examination of the post parcel and scrutiny of the documents submitted by the appellant and the proforma invoice withdrawn from the post parcel, the Customs officers found that the appellant had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 5. The adjudicating authority ordered for the confiscation of goods and imposed fine of Rs.80,000/- (eighty thousand) and he also demanded customs duty and imposed penalty of Rs.20,000/- (twenty thousand) under Section 112(a) of the Customs Act, 1962. 6. Aggrieved by such an order, the appellant preferred an appeal before the First Appellate Authority. The First Appellate Authority after following due process of law, rejected the appeal and upheld the order in original, but reduced the quantum of redemption fine to Rs.30,000/- and the quantum of penalty was reduced to Rs.15,000/-. 7. The ld. Counsel appearing on behalf of the appellant would submit that Section 82 of the Customs Act, 1962, governs the goods which make entry through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icating the value of the consignment. 10. When there is no dispute that the appellant had imported the jewellery consignment by post parcel we find strong force in the contentions raised by ld. Counsel reading Section 2(16) of the Customs Act, 1962, entry in relation to goods is defined as: (16) entry in relation to goods means an entry made in a bill of entry, shipping bill or bill of export and includes in the case of goods imported or to be exported by post, the entry referred to in Section 82 or the entry made under the regulations made under section 84; 11. It can be seen from the above that in respect of goods which are imported or exported by post are in accordance with the mandate given in Section 82 of the Customs Act, 1962, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 82 which deals with post parcel is entirely different in construction and in coverage. It does not require the importer to make a declaration. The declaration made by the exporter abroad is deemed to be an entry for the goods. This is a very important difference. Even if an entry is found to be wrong the responsibility of wrong declaration cannot be fastened upon the importer. It would appear that Section 111 of the Act takes cognizance of this situation. Clauses (l) and (m) section 111 read as below: any dutiable or prohibited goods (l) which are not included or are in excess of those included in the entry made under this Act or in the case of baggage in the declaration made under Section 77.any goods which do not correspond ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of P. Kumar,(supra) wherein one of us was a member, and held as under: 13. We find that the Tribunal in the case of M. Vasi (supra) was considering an appeal filed by the Revenue in respect of the very same issue i.e. the goods that landed in India by a post parcel whether can be confiscated under the provisions of Section 111 of the Customs Act or not. The Bench after considering the law, held as under :- 10. When the goods are imported by Land, Sea or Air a Bill of Entry is filed for their clearance in terms of Section 46 of the Customs Act 1962 where the responsibility of making a truthful declaration is upon the declarant and where any contravention or lapse can render the goods liable for confiscation and the declarant liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion accompanying goods to be treated as entry - In the case of goods imported or exported by post, any label or declaration accompanying the goods, which contains the description, quantity and value thereof, shall be deemed to be an entry for import or export, as the case may be for the purposes of this Act. It can be noticed from the above reproduced portion of the Tribunals judgment that an identical issue was before the co-ordinate bench. The view taken by the Bench is that even if an entry is found to be wrong, the responsibility of wrong declaration cannot be fastened upon the importer. It can be also noticed that the decision of the Tribunal in the case of M. Vasi (supra) that the adjudicating authority in that case has dropped t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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