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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 ..... y 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 Rs. 4,00,000/- upon the appellant. 2. Sri K.P. Dey ( Advocate) appearing on behalf of the appellant argued that a consignment of 3,437 mobile phones of Chinese origin was seized by the Revenue on 20/09/12 from one SLR Van which was under lease contract of M/s. Shiv Shakti Carriers & Cargo under the Proprietorship of the appellant. That after detailed investigation, show cause notice dt. 28/02/2013 was issued, inter alia, to the appellant for confiscation of the seized goods & for imposition of penalty under Section 111 (d) of Section 112 of the Customs Act, 1962. That adjudicating a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09-14 dated 14/10/2009 is concerned, Ld. Advocate argued that there was not a whisper of this prohibition in the show cause notice and adjudicating authority, without giving the appellant any opportunity to explain, held that importer has to declare valid IMEI No. of each mobile phone imported. That by doing this, the adjudicating authority and the first appellate authority 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 Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds or were not found. In this regard Section 125(1) of the Customs Act, 1962 is relevant and is reproduced below: "Section 125 Option to pay fine in lieu of confiscation:- (1) Whenever confiscation of any goods is authorized by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods or, where such owner is not known, 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." 4.1 In view of the above provisions of Section 125(1), appellant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Bench finds it so. It is accordingly held that in para 5 of the Order-in-Appeal dated-31/03/2014 is beyon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue involved in this appeal filed by the Revenue is whether, at the time of granting an option for payment of fine in lieu of confiscation for seizures in an area other than the Customs area (normally called as Town Seizure), Customs duty is required to be paid by the owner of the goods. In the case of town seizures, the date on which the seized goods are brought into India, is not available. As per the provisions contained in the Customs Act, 1962, the relevant date for determining the rate of duty is the date when the Bill of Entry is filed. In the case of town seizures, such a date will not be available. Therefore, it will be impossible for the adjudicating officer at the time of allowing redemption to determine the rate of duty and acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f be the importer. So, the word importer has to be read in the context of the time between their importation and till they are cleared for home consumption, which is the time when the imported goods are in the Customs area. Accordingly, it is held that the Customs duty cannot be demanded in town seizures in addition to redemption fine from the person from whose possession the smuggled goods are seized because the value/price of the seized/confiscated goods is deemed to include the duty element levied/leviable with respect to such goods, and the officer adjudicating the case has considered the same while imposing redemption fine." In view of the above it is held that Customs duty cannot be demanded from the appellant as it is a case of town ..... X X X X Extracts X X X X X X X X Extracts X X X X
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