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TMI Blog2007 (11) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... K. Jayaraman, Member (T) [Order per: T.K. Jayaraman, Member (T)]. - 1. Revenue has filed this appeal against Order-in-Original No. 8/2003 Commr/Cus Adjn. dated 31-3-2003 passed by the Commissioner of Customs, Bangalore. 2. Respondent Shri Dinesh Chhajer was dealing in computer parts like EDO RAM, SD RAM and processors of makes like Celeron and AMD, which were actually smuggled. The DRI had conducted very detailed investigation and it was revealed that the respondent was dealing in smuggled goods. He was actually receiving the various computer parts by courier from some parties in Calcutta and was supplying the same to various persons and the sale proceeds were not sent through the banking channels. Thus it was established that the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im under Section 125(2) of the Customs Act. They have also relied on the various case laws particularly the decision of the Tribunal in the case of CCE, Nagpur v. Jadish Bholaji Basule - 1998 (98) E.L.T. 644 (Tri.) wherein it is held that the owner or person from whom the goods seized or order to be seized and permitted to be redeemed on fine is liable to pay any duty and charges payable thereon under Section 125(2) of the Customs Act, 1962. 3. Ms. Sudha Koka, learned departmental representative appeared for Section 28 the Revenue and Shri Lakshmi Narayan leramed counsel for the respondent. 4. We heard both sides. The investigations clearly revealed that the respondent was dealing in smuggled goods. The Adjudicating Authority has held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before the duty is demanded a notice is issued on the person chargeable with duty. Therefore, while the duty is demandable on the smuggled goods (because duty has obviously not been made in view of the facts revealed in the investigation) the notice should be on the person chargeable with duty. In the case of imports we should ask the question as to who is the person chargeable with duty is the person chargeable with duty is the person who imports the goods. In other words the importer is liable to pay duty. Who is the importer? Customs Act, Section 2(26) defines importer, which is reproduced below: "Importer", in relation to any goods at any time between their importation and the time when they are cleared for home consumption, include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods. In such circumstances, when the confiscated goods are released, apart from the fine the owner of the goods or the persons referred to in sub-section (1) [i. e a person from whom the goods were seized] is liable to pay the duty. So, Section 125(2) cannot be applied to a situation where there is no seizure and confiscation. In these circumstances, the correct legal position is that the duty can be demanded under Section 28 only on the person chargeable with duty and that person is an importer. Therefore in the absence of evidence to hold that the respondent actually imported the goods, duty cannot be demanded from him. The case law relied on by the Revenue refers to a situation where goods were seized from a person. In such case Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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