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TMI Blog2016 (5) TMI 1210X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Act and would appropriately constitute prohibited goods liable for confiscation under Section (i),(I) & (m) ibid. Therefore, government upholds Department’s contortion that absolute confiscation is legally warranted keeping in view the facts and circumstance of the case. The appellate authority had completely ignored the fact that Shri Shamsuddin Malik was the carrier of the impugned goods and he brought the goods on behalf of Shri Didar Singh for monetary gain. The no objection given by Shri Didar Singh to Shri Shamsuddin Malik was nothing but an afterthought to escape from the penal action at the hands of Customs Authorities Government, therefore, holds that in the present case the goods imported by the passenger as a carrier are liable for absolute confiscation as rightly pleaded by the department. Hence, the original adjudicating authority has rightly ordered absolute confiscation of the impugned goods and that the commissioner (Appeals) has erred in allowing releasing of the impugned goods on payment of redemption fine and reduced penalty. Government further notes that commissioner (Appeals) in his order has held that since the baggage rate of duty was levied on the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectively value at ₹ 31,07,178/- were recovered under the panchanama dated 23.07.2011:- 1. 2 GB Micro SD Cards (unbranded) 8300 pcs 2. GB Micro SD Cards (Kingston Brand) 14000 pcs 3. Nikon Brand Coolpix Digital Camera 02 pc 4. Blackberry mobile phone 8100 01 pc 5. Apple IPad 64 GB 03 pcs 6. Fabric (Suit length) 88.3 mtrs 2.1 the statement of Shri shamsuddin malik was recorded on 23.7.2011 under Section 108 of the Customs Act, 1962 as given in para 3 of the impugned Order-in-Original wherein he interalia stated that on the instructions from one Shri Dildar singh, who had promised him to give ₹ 3/- per memory card, he brought 22300 nos of memory cards along with other goods; that he met Shri Didar Singh approximately 2 months back in Gaffar Market, Delhi; that he sad to talk to Shri Didar Singh often of he knew that Shri Didar singh was dealing in memory cards and mobile phones; that Shri Didar Singh was working for one Shri Ranjit Singh of Hong Kong; that he was to deliver the goods after Customs clearance to Shri Didar Singh, who would meet him near metro pillar no 578 near Janakpuri metro station, new delhi; that he agreed to take the officers to me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e confiscation of the goods collectively valued at ₹ 31,07,178/- in terms of provisions of Section 111 (i), (I) (m) of the customs Act, 1962 as the owner of the goods did not claim the goods (b) Imposed a penalty of ₹ 10,00,000/- (Rs. Ten lacs only) on Shri shamsuddin Malik in terms of section 114 AA of the customs Act, 1962. (c) Imposed a penalty of ₹ 15,00,000/-(Rs. Fifteen lacs only) on Shri Didar Singh in terms of Section 114 AA of the Customs Act, 1962. 3. Being aggrieved by the said Order-in-Original, respondents filed appeal before Commissioner (Appeals) who modified the Order-in-Original and allowed the impugned goods to be released to Shri Shamsuddin Malik for home consumption on payment of ₹ 1,00,000/-(one lacs) as redemption fine. Penalty imposed upon him was reduced from ₹ 10,00,000/- (ten lacs) to ₹ 1,00,000/-(one lac) and penalty imposed on Shri Didar Singh was reduced from ₹ 15,00,000/- (Fifteen lacs) to ₹ 2,00,000/- (Two lacs). 4. Being aggrieved by the impugned Order-in-Appeal, the applicant has filed this revision application under Section 129 DD of Customs Act, 1962 before Central government of the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposing low redemption fine of ₹ 1,00,000/- considering the value of goods involved any gravity of the offence. 4.3 That the Commissioner (Appeals) has erred in reducing the penalty on both the appellants imposed under the adjudication order for smuggling of goods valued at ₹ 31,0,7178/- by way of outright concealment and mis-declaration as part of unaccompanied baggage. The adjudicating officer had rightly confiscated the goods absolutely and imposed penalty of ₹ 10,00,000/- on Shri Shamsuddin Malik and ₹ 15,00,000/- on Shri Didar Singh respectively under Section 114AA of Customs Act, 1962. That this has been reduced ny Commissioner (Appeals) to ₹ 1,00,000/- and ₹ 2,00,000/- on Shri Shamsuddin Malik and Shri Didar Singh respectively. That the penalty has been modified/reduced to an unjustifiable low lever. It has repeatedly been held by the Tribunal that quants of penalty should be such that it act as deterrent for other recalcitrant importers. (a) That Commissioner (Appeals) has erred deciding that the baggage rate of duty in itself has inbuilt component of penalty because it is multiple times of normal rate of duty, therefore, there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stored/upheld. (ii) Or pass such order as the Government of India, may deem fit, proper and appropriate in the light of facts and circumstances of the case. 5. A Show Cause Notice was issued to the respondents under Section 129 DD of Customs Act, 1962 to file their counter reply but no reply was received in this regard from the respondents. 6. Personal hearing in this case was fixed on 16.03.15, 08/04.15, 21.04.2015,13.05.2015 and 09.09.2015. Hearing was attended by Shri P.K. Srivastava, Superintendent, Customs (SIIB) on behalf of the applicant who reiterated the grounds of revision application. Neither the respondents nor their authorized the ground of revision application. Neither the respondents nor their authorized representative attended the personal hearing grinded from time to time by Revisionary Authority nor sought any adjournment. Hence Government proceeds to decide the case on the basis of available case records pertaining to the case. 7. Government has carefully gone through the relevant case records available in the case filed, oral written submission and perused the impugned Order-in-Original Order-in-Appeal. 8. On perusal of records, Government obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents been rightly reduced or not. 10. Government notes is is an undisputed fact on record that the impugned goods totally valued at ₹ 31,07,178/- are n commercial/trade quantity and do not constitute bonafide personal effects under Section 79 ibid read with the EXIM policy in force and the passenger neither made a true declaration of the goods nor declared true quantity and value. therefore, he contravened the provisions of Section 77 and 79 of the Customs Act. In terms of CBEC s Circular No. 29/200-Cus dated 11.04.2000 import of goods in commercial quantity would not be permissible within the scope of baggage rules, ever on payment of duty. Reliance is also placed on decision of Hon ble Apex Court in the case of Om Prakash Bhatia Vs Commissioner of customs, Delhi 2003(155)ELT 423(SC) wherein is is held that the goods which can be imported subject to certain conditions and if conditions not fulfilled, it has to be treated as prohibited goods. The respondent was not eligible to import the impugned goods and were imported in gross violation of the provisions of the Customs Act and Foreign Trade (Development and Regulatory) Act and would appropriately constitute proh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted by the passenger as a carrier are liable for absolute confiscation as rightly pleaded by the department. 12. Government s views as above also find support in the decision of Hon ble supreme court in the case of Mohammad Aijaj Ahmed 2010 (235) ELT E83 (SC) wherein it has upheld order of Mumbai High Court wherein release of gold to passenger who acted as carrier was not allowed and absolute confiscation was upheld further the Hon ble High Court of Chennai in the case of S. Faisal Khan vs. Joint Commissioner of Customs (Airport) Chennai 2010 (259) ELT 541 (Mad) upheld absolute confiscation of goods carried on behalf of someone else for a monetary consideration. In the case of Ram Kumar vs. commissioner of Customs 2015 (320) ELT 368 (Del) also the Hon ble High court of Delhi has held that carrier is not entitled to benefit of Section 125 of Customs Act, 1962. 13. In view of above, government holds that the original adjudicating authority has rightly ordered absolute confiscation of the impugned goods and that the commissioner (Appeals) has erred in allowing releasing of the impugned goods on payment of redemption fine and reduced penalty. 14. Government further notes that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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