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TMI Blog2016 (6) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... rary to the provision of Section 129 DD (2) and is therefore liable for rejection. - Decided against the applicant - F.No.373/44/B/13-RA-CUS - ORDER NO. 13/2016-CUS - Dated:- 15-2-2016 - Rimjhim Prasad ORDER This revision application is filed by Shri Abdul Kareem against the Order-in-Appeal No. 142/2012 dated 23.08.2012 passed by Commissioner of Customs, (Appeals) Bangalore, with respect to Order-in-Original No. 01/2012 ADC dated 17.02.2012 passed by addl. Commissioner of Customs, NCH Mangalore. 2. Brief Facts of the case are that directorate of Revenue Intelligence, Mangalore (herein after referred to as DRI) received the intelligence that certain goods liable to confiscation under the provisions of Customs Act, 1962 had been sent to Mumbai b certain persons by Railway parcel Service vide receipt No. KZE 724129 booked from Kanhangad Railway Station and that the same were reaching enrooted to Mangalore Central Railway Station for onward transportation. Actin upon the said intelligence, the officers of DRI intercepted the parcel of Mangalore Central Railway station, opened and examined in the presence of independent witnesses. It was found that the said parcel contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious, mainly Calicut Airport, without declaring the same to Customs and without paying any duty thereon and therefore no duty paid receipts were available pertaining to the said goods; that he had purchased these Cigarettes to make a profit out of selling the same in Mumbai; that he was aware that these were imported Cigarettes and were without the statutory health warnings; that he was also aware that it was illegal to buy and sell such imported cigarettes without the statutory health warning; that he resorted to such illegal activity of purchasing the said imported Cigarettes without statutory health warning and transporting the same of the purpose of selling, in the greed of the profit he would have fetched in the deal; that on being shown the copy of Railway Parcel Receipt No. 724129 of Kanhangad Railway Station, pertaining to the seized consignment of 246 Cartons of Cigarettes, wherein sender s name is mentioned as Kareem , he identified the said receipt and stated that the consignment vide the aforesaid receipt was booked by him through Shri Hamza, a porter of Kanhangad Railway Station by making a payment of ₹ 450/- towards booking this consignment of 246 cartons of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out statutory pictorial warning which were liable to confiscations under the provisions of Customs Act, 1962, and attempted to transport and sell it for a profit. Investigation also indicated that Shri Abdul Kareem acquired possession of the said goods from persons who had smuggled the same to India against the restrictions and without making payment of proper duty thereon. Shri Kareem did not have any documents whatsoever with him to show that the goods were licitly brought into India. In fact, Shri Kareem admitted that he had purchased the same from passengers who had brought it into India without declaring it to Customs and without payment of appropriate duty. 2.5 A show Cause notice dated 07.09.2011 was issued to Shri Abdul Kareem, proposing confiscation of Cigarettes of 246 cartons of Davidoff brand (mad in Germany, valued at Rs, 2,46,000/- should not be confiscated under Section 111(d) (j) of the Customs Act, 1962 read with Cigarettes and Other tobacco Products (Packing and Labelling), Rules, 2007 as amended and penalty under Section 112(b) of customs Act, 1962 should not be imposed in him for the confiscation of provisions of customs Act, 1962. 2.6 The Show Cause Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and of a Porter of Kanhangad Railway Station. In order to rely upon these statements, the 1 st lower authority termed is as confessional statements and come into a conclusion that the goods are smuggled goods and therefore liable for confiscations under Section 111 (d) of the Customs Act, 1962. That there is no independent corroborative evidence to prove that the impugned goods were imported resorting that method of smuggling. That the Commissioner Appeals did not consider this aspect and quashed the order of the 1 st lower authority and upheld the said order by committing miscarriage of justice. 4.3 That the findings in the impugned order were graduated from the statement of the applicant recorded under Section 108 of the Customs Act. That the 1 st lower authority, for the sake of convenience, termed the statement as confessional statement and found that the applicant had knowledge about the confusability of the subject goods and that the applicant had contravened the provisions of Customs. That the 1 st lower authority failed to understand and distinguish the meaning and scope of a statement recorded under Section 108 of the Customs Act with a confessional statement. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m various people. That there is no case for the 1 st lower authority that the applicant had imported or even associated with the import of the impugned goods. That the goods not imported by the applicant, is impossible for him to depose that those were cleared without paying duty. That in the absence of any independent evidence to prove that the impugned goods were imported and cleared without paying customs duty; it is illegal to proceed against the applicant under the Customs Act. That there is no evidence on record to prove that from which Air port and on which date the impugned goods were imported by resorting the method of smuggling as found by the lower authority. That without any legal support evidence, the lower authority has come to the findings that he impugned goods were imported violating the provisions of Customs Act. That the impugned order is therefore arbitrary, illegal and unsustainable in the eye of law, liable to be dropped. 4.7 That the pre-requirement of statutory health warning is not applicable in this case. That the conditions imposed under Section 3 of the Cigarettes and other Tobacco Products (Packing and Labelling) Rule 2008 is applicable only in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stantiate import. That the Investigating authorities have not even found any details regarding the place of import and the identity of the importer. That DRI has not case that the applicant had imported the subject goods and had removed such goods from the customs areas against provision of law. That the officers under the lower authority had seized the goods while on transit and not when those were imported or attempted to import, sell produce, distribute or supply. That the order confiscating goods under Section 111 (d) of the Customs Act and to impose penalty under Section 112 (b) on the applicant is liable to be rejected. 4.10 That the findings of the lower authority about the pictorial warning in the subject good is not applicable in this case as the impugned goods were not intended for sale. That in the peculiar circumstances and perishable nature of the impugned goods, the applicant is ready and willing to affix pictorial warning in each and every carton as mandated under the Tobacco Products (Packing and labelling) Rule 2008. That the order of absolute confiscation of goods under the impugned order under challenge is liable to be set aside. That the 1 st lower authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and does not adduce any evidence to substantiate the claim of his buying the goods from any duty paid shops. The applicant falsely declares the goods as clothes while sending he goods through railway parcel. That the total quantity of Cigarettes works out to 49,200 Cigarettes. that such a huge quantity of perishable goods like Cigarettes for personal use is false and is a desperate attempt to avoid penal consequences of his omissions and commissions. 5.4. The applicant in his statement recorded under Section 108 has categorically stated as to how he procured the impugned smuggled goods. That the applicant being a habitual smuggler has found ingenious methods of smuggling the goods. 5.5. That the pre requirement to pictorial statutory health warning is fully applicable in this case and the conditions imposed under Section 3 of the cited Rules are applicable in all cases of engaging directly or indirectly in the specified activities. 5.6 That the material and documentary evidences of the case clearly establish that the impugned goods are of foreign origin and smuggled through various airports. That the ambiguous contortion that goods of local made are available merits reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 129 DD of the Customs act, 1962. The said Section reads as under:- Section 129 DD : Revision by Central Government- (1_ The Central Government may, on the application of any person aggrieved by nay order passed under Section 128 A, where the order is of the nature referred to in the first proviso to sub-section (1) of Section 129a, annul or modify such order. Provided . (1A) .. (2) An application under sub-section (1) shall be made within three months from the date of the communication to the applicant of the order against which the application is being made: Provided that the Central Government may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the aforesaid period of three months, allow it to be presented within a further period of three months . 10.1. From the perusal of above said provision, it is clear that the stipulated period of filing revision application is 03 months form the date of receipt of Order-in-Appeal. This period of 03 months can be extended further 03 months beyond initial period provided sufficient cause which prevented the applicant from filing Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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