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TMI Blog2014 (5) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... erson who imported the goods - He is not the owner of the goods - He was only a dealer of the smuggled goods and therefore, there is no obligation cast on him to pay duty and therefore, the notice issued u/s 28 to the assessee is unsustainable as he is not the person who is chargeable to duty under the Act. Insofar as application of Section 125(2) is concerned, admittedly, no goods are seized - Once the goods are not seized, consequently, there is no confiscation and in the absence of a confiscation, payment of duty chargeable from the person who is the owner or from whose possession does not arise - Hence, Tribunal was justified in upholding the order passed by the Adjudicating Authority who has held that no duty is leviable against the assessee as he is neither the importer nor the owner of the goods or was in possession of any goods - Accordingly, Decided against the revenue. - CSTA No. 9 of 2008 - - - Dated:- 16-9-2011 - N. Kumar and Ravi Malimath, JJ. Shri Y. Hariprasad, Advocate, for the Appellant. JUDGMENT The revenue has preferred this appeal challenging the order passed by the Tribunal [2008 (223) E.L.T. 436 (Tri. - Bang.)], which has held that no cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to pay any duty and charges payable thereon under Section 125(2) of the Customs Act, 1962. However, the Tribunal on the basis of the wordings in Section 28 and Section 125(2) of the Act held that the duty can be demanded under Section 28 only on the person chargeable with duty. The person who is chargeable with duty is the importer as defined under Section 2(26) of the Act. Further it held that if the smuggled goods are seized, confiscated and then an option is given to the person from whom the goods were seized or owner of the goods under Section 125(2) of the Act apart from fine and penalty, even duty could be demanded from such person. However, in the instant case, the assessee is not the importer. Goods are not confiscated and therefore, the demand of duty on the assessee is unsustainable in law. Therefore, the Tribunal upheld the order and dismissed the appeal. Aggrieved by the same, revenue is in appeal. 3. The substantial questions of law that arises for consideration in this appeal are as under :- (i) Whether the CESTAT is right in holding the noticee, to be not a person chargeable with duty under Section 28 of the Customs Act, 1962, though it had been pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chargeable to duty under the Act. 6. Section 2(25) defines imported goods , which reads as under :- imported goods means any goods brought into India from a place outside India but does not include goods which have been cleared for home consumption. 7. Section 2(26) defines importer as under : importer , in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out to be the importer. Therefore, the said demand of duty is chargeable from the importer who has imported the goods and who has not paid the duty. 8. Section 47 of the Act deals with the clearance of goods for home consumption, which reads as under:- 47. Clearance of goods for home consumption. - (1) Where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption. (2) Where the importer fails to pay the import duty un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... route specified in a notification issued under clause (c) of Section 7 for the import of such goods; (c) any dutiable or prohibited goods brought into any bay, gulf, creek or tidal river for the purpose of being landed at a place other than a customs port; (d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force; (e) any dutiable or prohibited goods found concealed in any manner in any conveyance; (f) any dutiable or prohibited goods required to be mentioned under the regulations in an import manifest or import report which are not so mentioned; (g) any dutiable or prohibited goods which are unloaded from a conveyance in contravention of the provisions of section 32, other than goods inadvertently unloaded but included in the record kept under sub-section (2) of section 45; (h) any dutiable or prohibited goods unloaded or attempted to be unloaded in contravention of the provisions of section 33 or section 34; (i) any dutiable or prohibited goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been seized,] an option to pay in lieu of confiscation such fine as the said officer thinks fit : Provided that, without prejudice to the provisions of the proviso to Sub-section (2) of Section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. (2) Where any fine in lieu of confiscation of goods is imposed under sub-section (1) the owner of such goods or the person referred to in sub-section (1) shall, in addition, be liable to any duty and charges payable in respect of such goods. 12. It provides when the confiscation of the goods is authorised under the Act and an order for confiscation is passed by the competent authority, it is open and such authority either to confiscate the goods and sell them or give to the owner of the goods or the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit. 13. Sub-section (2) of 125 also authorizes such competent authority to demand any duty payable on such goods which is payable in respect of such goods under the Act. Therefore, the notice to be is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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