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TMI Blog2016 (7) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... t enquiry was conducted in a similar case and the same has not been taken into consideration in the appellate order. Government therefore finds that the abatment of 40% on market value allowed by Commissioner(Appeals) is on the higher side and the Order-in-Original allowing abatment of 25% is upheld. Further, Government finds that Appellate Commissioner's decision to reduce the quantum of redemption fine and penalty as a result of re-determination of value for duty purpose is thus also incorrect. Government therefore, restores quantum of redemption fine under Section 125 and penalties under Section 112 as imposed under the Order-in-Original. Decided partly in favor of revenue. - F.No.380/99/B/13-RA - ORDER NO. 20/2016-CUS - Dated:- 26-2-2016 - SMT. RIMJHIM PRASAD, JOINT SECRETARY ORDER: This Revision Application is filed by Commissioner of Customs (Airport), New Delhi, (here in after referred to as the department) against the order-in-appeal No. CC(A)/CUS/362/2013 dated 11,07.2013 passed by Commissioner of Customs (Appeals), New Delhi, with respect to Order-in-Original No. 100/2012 dated 28.12.2012 passed by Addl. Commissioner of Customs, (Airport) New Delhi. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Surindra Singh was diverted for scanning of his hand and checked-in-baggage. Thereafter, both the passenger and Shri Kawaldeep Singh, were brought to the Customs preventive room situated at the Arrival Hall, for a detailed examination of baggage and their personal search, in the presence of two independent witnesses. 2.4 After following due process of law, the Customs officer conducted the personal search of Shri Kawaldeep Singh and the passenger Shri Surinder Singh Arora in presence of two independent witnesses. Nothing incriminating was recovered from Shri Surinder Singh Arora. However, on the personal search of Shri Kawaldeep Singh 04 packets wrapped in brown colour tape besides other things as mentioned in the para 1.6 of the Order-in-Original were recovered. 2.5 The recovered four packets from Shri Kawaldeep Singh were opened in the presence of two independent witnesses and found to contain 8020 Nos. of 2GB memory cards, collectively valued at ₹ 12,03,000/-(@ ₹ 150/- per piece after allowing an abatement of 25% on the market value). As the Pax Shri Surinder Singh Arora and Shri Kawaldeep Singh failed to produce any documentary evidence for their licit impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O and selling them on commission basis under the name and style M/S. S.S Arora; that he earned a profit of ₹ 2 Lakhs annually: that he bought his tickets from his own pocket from M/S ISHA TRAVELS TOUR (P) LTD.; that Shri Kawaldeep is a friend of his son, Shri Gurpreet Singh and occasionally visited his house to meet his son and in Dec, 2011 his son introduced Shri Kawaldeep to him. 2.7 The statement of Shri Kawaldeep Singh was also recorded under Section 108 of the Act ibid on 13.01.2012 wherein he, inter- alia stated that he joined M/S IDDS, C/o M/S. DIAL as engineer in July, 2011; that in the year 2010 he befriended Shri Gurpreet Singh through facebook; that after Shri Kawaldeep joined the job at IGI Airport, Gurpreet introduced him to his father Shri Surinder Singh Arora; that after meeting Shri Kawaldeep twice or thrice, Shri Surinder Singh Arora told him that he (Surinder Singh Arora) used to visit Bangkok and other countries and brought memory cards with him; that Shri Arora allured him of giving money for helping him in removing memory cards brought by the Shri Surinder Singh Arora out of the IGI Airport; that out of greed he agreed to the same; that the Shri Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on 13.01.2012, as decided, the Shri Surinder Singh Arora after arriving from Flight No. TG-323 from Hong Kong handed over four packets containing 8020 nos. of memory cards of 2GB each, which he concealed inside his socks; that he was to hand over the said packets back to the Shri Surinder Singh Arora outside the IGI Airport, but before that the Customs Officers caught him and recovered the said tour packets from him ; that Shri Surinder Singh Arora was supposed to pay him ₹ 4000/- for completion of the said work. 2.10 Shri Surinder Singh Arora also appeared on 17.01.2012 and tendered his voluntary statement under section 108 of the Act ibid on 17.01.2012, wherein, he inter- alia stated that Shri Kawaldeep Singh worked at Airport and was a friend of his son; that in Dec. 2010 asked his son to call Shri Kawaldeep Singh at their residence; that to, earn more profit he called Shri Kawaldeep Singh at his house so that he could bring memory cards from Hong Kong and take it out of IGI Airport without payment of Customs Duty; that he discussed the matter of bringing memory cards from Hong Kong with Shri Kawaldeep Singh ; that Shri Kawaldeep Singh would take away the memory cards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p Shri Kawaldeep Singh at his house on one day and introduced to his father, Shri Surinder Singh; that his father discussed with Shri Kawaldeep Singh clearance of memory cards from IGI airport without payment of Duty; that it was decided that Shri Kawaldeep Singh would receive the packets of memory cards in the toilet of the Airport and would deliver the same outside the Airport and for the said task ₹ 4000/- was paid to Shri Kawaldeep Singh. 2.12 In order to verify the authenticity of the conversation between Shri Surinder Singh Arora and Shri. Kawaldeep Singh, M/S Vodafone Mobile Services Ltd., C-48, Okhla Industrial Area, Phase-Il, New Delhi was requested to supply the call details of mobile .nos. 9999504343 and 9811740711. The Nodal Officer M/S Vodafone Mobile Services Ltd., C-48, Okhla industrial Area, Phase-Il, New Delhi vide his letter dated 31.012012 supplied the call details of the aforesaid mobile numbers. Scrutiny of the call records reveals that the pax was in touch with Shri Kawaldeep Singh and vice versa. It appeared from the above, the pax Shri Surinder Singh Arora and Shri.Kawaldeep Singh were in touch with one another and the interception of Shri.Kawal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s adjudicated and the adjudicating authority ordered the following: (a) Disallowed free allowance of ₹ 25,000 /- (as was applicable at the material time) to Shri Surinder Singh Arora (Notice No.1) on account of various acts of omission and commission as committed by him. (b) Ordered for confiscation of the impugned seized goods (8020 nos. memory cards of 2 GB each) totally valued at ₹ 12,03,000 /- under section 111 (l) (m) of the Customs Act, 1962, with an option to Shri Surinder Singh Arora to redeem the same on payment of redemption fine of ₹ 4,00,000 /- (Four Lakhs only) under Section of 125 of the Act ibid on payment of appropriate duty and interest thereon under Section 28 and 28AB of the Act ibid; (c) Ordered for confiscation of the two pairs of socks (one pair of normal socks and one pair of long woolen socks) recovered from Shri Kawaldeep Singh, used for concealing the said smuggled goods under section 118 and section 119 of the Customs Act, 1962 with an option to redeem the same on payment of redemption fine of ₹ 2,000/-(Rs. two Thousand only) under Section of 125 of the Act ibid; (d) Imposed a penalty of ₹ 2,50,000/-(Rs.Two lakh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of redemption fine and penalty on Shri Surinder Singh Arora ignoring the several important facts, which are as under. (g) It is a serious case of smuggling of large quantity of Memory cards valued at ₹ 12,03,000 /- (arrived at by giving 25% abatement on market value); (h) In this case, the Appellate Authority has ordered 40% abatement from the market value Ordering 40% abatement in the instant case is excessive and not consistent with his order in other cases. (i) The pax, Shri Surinder Singh Arora does not appear to be bonafide pax and does not deserve any leniency with reduced fine and penalty. (j) The notice Shri Kawaldeep Singh also does not deserve any leniency with reduced penalty. (k) In view of above, it appears that the appellate authority order to reduce abatement along with fine and penalty is not legal and proper. 4.3 The applicant made the following prayers (i) To stay the order passed by the Commissioner (Appeals); (ii) To determine the correctness of the order passed by the Commissioner (Appeal) with regard to reduced abatement fine and penalty in the light of facts and circumstance of the case; and (iii) To pass such other orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00,000 /- on Shri.Kawaldeep Singh and ₹ 50,000/- on Shri.Gurpreet Singh. The respondent filed appeal before Commissioner (Appeals) who allowed 40% abatement on the market value of the goods and reduced the redemption fine to ₹ 1,50,000 /- penalty on Shri.Surinder Singh Arora was reduced to ₹ 1,50,000 /- and on Shri.Kawaldeep Singh to ₹ 75,000/-. Now the department on grounds as mentioned in para 4 has filed the present revision application mainly on the issue of 40% abatment on market value allowed by Commissioner (Appeals) and against reduction in the fine and penalty amount. 9. Government observes that the main issue which forms the basis for seeking revision of the Appellate order is the valuation of the impugned goods. The department has contended that the Commissioner (Appeals) has erred in granting benefit of 40% abatement on the market value of the impugned goods for duty calculation instead of 25% abatement which is excessive and not legal and proper considering the smuggling of large quantity of Memory Cards (8020 pcs) valued at ₹ 12,03,000 /- and is also not consistent with appellate orders in other cases. 9.1 In this regard, Government ..... X X X X Extracts X X X X X X X X Extracts X X X X
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