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TMI Blog2015 (9) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... from appellant as it is case of town seizure and date/time of inspection is not known to determine rate of duty, exchange rate and value of goods – Appellant being transporter cannot be expected to know all and no such statement exists that he was aware of smuggled nature of seized goods – In view of observations, penalty imposed is set aside – Decided in favour of Assesse. - Customs Appeal No. C/75747/2014 - Order No. FO/A/75452/2015 - Dated:- 14-8-2015 - Shri H. K. Thakur, Hon ble Technical Member, JJ. For the Petitioner : Sri K. P. Dey, Advocate For the Respondent : Sri S. N. Mitra, A.C. (A.R) ORDER Per Shri H. K. Thakur This appeal has been filed by the appellant against Order-in-Appeal No. 665/Pat/Cus/Appeal/2014 dated-31/10/2014 passed by Commissioner (Appeal), Patna as first appellate authority. Under this Order-in-Appeal dt. 31/03/2014 has upheld Order-in-Original No. 51-Cus/ADC/Hqrs./2013 dated-30/09/2013, passed by the Adjudicating authority, confiscating 3,437 number Chinese mobile phones under Section 111(d) (i) of the Customs Act, 1962 and also imposed a penalty of ₹ 4,00,000/- upon the appellant. 2. Sri K.P. Dey ( Advocate) appeari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority has exceeded the scope of the show cause notice dated 28/02/2013. 2.3 Learned Advocate further argued that no duty liability arises in case of town seizures as held by the following case laws: (i) Yakub I Yusuf Vs. C.C. Mumbai) (supra) (ii) CCE, Surat-II Vs. Mahadev Enterprise reported in 2011 (301) ELT 150 (Tri-Ahmedabad) 2.4 Regarding imposition of penalty vide Section 112(b) it was argued that no penalty can be imposed on the appellant as he had no knowledge that goods were liable to confiscation. 3. Shri S.N. Mitra (A.R.) appearing on behalf of the Revenue argued that disposal of goods involved in this appeal was made by the department after intimating the Advocate of the appellant. It was his case that there was no specific direction from the Bench regarding non disposal of the confiscated goods. That appellant is not the importer of the goods and cannot claim the redemption of seized/confiscated goods of which he is not the owner. On the issue of requirement of IMEI No. on each mobile phone, as per Notification No. 14/2009-14 dated-14/10/2009, learned A.R. defended the orders passed by the lower authorities on the grounds that appellant has not discharg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be shared with five persons. Therefore the above-cited case is not applicable to the facts of the case. The department has also placed reliance on Tribunal s Order No. 1980 to 1995/ 09 (supra) which in turn relied upon above-cited decision of Hon ble Bombay High Court, hence the decision is not applicable to the case. The issue in the High Court of Madras in the case of Bansal Industries (supra) related to whether mens rea is required for imposition of punishment which is not in dispute in the instant case, hence the cited case by department is not also relevant. A plain reading of sub-section (2) of Section 125of CA, 1962, shows that an option has to be given to the owner of the goods or where the owner is not known, the person from whose possession or custody such goods have been seized. Undoubtedly, the gold has been seized from the possession of the appellant. Therefore, the aforesaid contention of the Department is not sustainable. 5. On the issue of violation of condition of Notification No. 14/2009-14 dated 14/10/2009, it is the case of the appellant that the same was not the subject matter of the show cause notice dated-28/02/2013. On perusal of the case records Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of Section 125 of Customs Act, 1962, the quantum of redemption fine is restricted to the market price of the goods minus duty. Once the element of Customs duty payable on the confiscated goods is not ascertainable at the time of redemption, it is presumed that the entire duty payable on the confiscated goods stands included in the value of the confiscated goods and accordingly, no reduction on account of duty element can possibly be allowed by the adjudicating authority granting an option of payment of fine in lieu of confiscation. That is why, in the case of town seizures, the value/price of confiscated goods is always considered to include the duty element, if any, paid or payable with respect to the confiscated goods. In the present case, it is rightly held by Commissioner (Appeals) that the present respondent is not an importer of the goods. At this point, it will be relevant to glance through the definition of importer as given in Section 2 (26) of Customs Act, 1962 which reads as follows: 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 hims ..... X X X X Extracts X X X X X X X X Extracts X X X X
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