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TMI Blog2016 (7) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Customs, (Appeals) Kolkata with respect to Order-in-Original No. 23/2012 dated 29.12.2012 passed by Additional Commissioner of Customs, All-Jl NSCBI Airport, Kolkata. 2. Brief facts of the case are that on 10.05.2007, Shri Jaswinder Singh travelled from Bangkok to Kolkata with assorted garments, mobile phones with accessories, micro SD adapters with memory card, mobile phone batteries etc. along with Indian currency ₹ 25,000/- Seven other passengers were also intercepted in the green channel and similar items were recovered from their possession. These passenger claimed to be carrying these goods on behalf of Shri Jaswinder Singh. The total value of the goods were valued at ₹ 7,70,459/-. Since none of them could produce licit documents relating to lawful acquisition and importation of the impugned goods recovered the said goods were seized under Section 110 of the Customs Act, 1962. Separate summons were issued to each of the seven passengers but only Shri Jaswinder Singh appeared giving credence to the fact that all the goods belonged to him alone. It was also felt that these goods were brought for commercial benefit. 2.1. Accordingly, the Additional Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing aggrieved by the injustice done by the adjudicating authority who failed to have the baggage of the applicant revalued had been compelled to file an appeal to ensure that justice was metted out, since the applicant on the basis of the arbitrary valuation determined had resulted in the fixation of the unreasonable redemption fine and penalty by the adjudication authority. 4.4. That the refusal of the Commissioner (Appeals) to take up the applicant's appeal on its merits goes to portray a likely hood of a bias and impartiality towards the department and was interested in obtaining a particular result. 4.5. That the Commissioner (Appeals) prior to rejection of the applicant's appeal for non-compliance of the pre-deposit of the penalty was however legally and morally bound to examine the legality, propriety and correctness of the said order made by the adjudicating authority and having failed to do so called for setting aside of the said order. 4.6. The applicant prayed that the Revision Application be taken up for hearing on the merits by waving the condition of making the pre-deposit of the penalty of ₹ 15,000/-. 5. A show cause notice was also issued to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment. That the revision application be taken up for hearing on its merits for final disposal. 6.2. That the applicant during the adjudication proceedings had requested for having his seized baggage examined and value thereafter to be re-determined but the same was not acceded to by the then adjudicating authority. 6.3. That due to the fictitious and illogical valuation on the basis of the internet and market enquiry with details and evidence of the valuation obtained through the internet and from the market was never made available to the applicant as such the same should not have been used for the purpose of determination of such an arbitrary valuation when no such valuation should have been so determined. 6.4. That from the evidence and documents submitted it is clear that the none of the items imported by the applicant in the mode of baggage were banned or prohibited in nature nor notified in terms of Chapter - IV A of the Customs Act, 1962 or did attract the provisions of Section 123 of the stature, so as to invoke Section 104 of Customs Act, 1962 for his arrest and ultimately for the sanction of the prosecution under Section 135 (1) a b (i) of the Customs Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t] demanded in respect of goods which are not under the control of the Customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the [duty and interest] demanded or penalty levied; Provided that where in any particular case, the [Commissioner (Appeals)] or the Appellate Tribunal is of opinion that the deposit of [duty and interest] demanded or penalty levied would cause undue hardship to such person, the [Commissioner (Appeals)] or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interest of revenue. A plain reading of the provisions of Section 129 E of the Customs Act, 1962 as above makes the position crystal clear that for filing appeal before the appellate authority, the appellant shall pending the appeal, deposit the duty demanded or penalty imposed unless specifically dispensed with by the Appellate Authority. 10. Upon perusal of the records, Government observes that appeal was filed before Commissioner (Appeals) and the Stay Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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