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TMI Blog2015 (3) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... f mind as to his minute examination of the gravity of the case. Subsequent arrangement between the appellant and consigner is vividly clear as the letter sent on 07.12.2007 shows the date thereon as 17.01.2007. Once the goods were misdeclared that becomes smuggled goods under section 2(39) of the Customs Act 1962. This is done by misdeclaration and fabricating evidence and antedating the same. Record does not reveal bonafide of the consignor as well as the consignee who had hand in glove for misdeclaring description of the goods. The appellant was admittedly to be beneficiary of the goods imported fraudulently. Even though the appellant has not filed the bill of entry, the appellant is answerable under the law to the import by its intimate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mposed when the goods were confiscated and not claimed by appellant. The appellant has no objection, if goods are auctioned and the department has already auctioned the goods. In view of such circumstance, penalty of ₹ 3,00,000/- imposed shall not be justified. 3. Revenue on the other hand, submits that where there was mis-declaration of description was found, the goods were liable to confiscation and the appellant when failed to exercise its option to redeem the goods, those were absolutely confiscated. That has resulted with penalty of ₹ 3,00,000/- Lakhs. 4. Heard both sides and perused the records. 5. There is no doubt at all on the record that the goods were found to be mis-declared in its description when the unmutilated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was not sought by the appellant. 6. Ld. Counsel relied on the decision of the Apex Court in the case of Union of India vs. Smpat Raj Dugar reported in 1992 (58) ELT 163 (SC). Placing para 19 of the judgement, ld. Counsel prayed for immunity. But in that case import was subject to import license. Present goods were not. Further, in that case re-export was sought, since the importer did not intend to clear the goods. But here is a case where there is no expression of interest for re-export. Rather the consigner says that re-export will not be cost effective. This also proves hand in glove of both the parties to confirm penalty to the tune of ₹ 2,00,000/- in the fitness of the circumstance of the case. Accordingly, penalty of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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