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TMI Blog2016 (7) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... cant. Government therefore restores the quantum of redemption fine and penalty as imposed by the original adjudicating authority. - Decided in favor of revenue. - F.No.375/23/2013-RA AND F.No.380/86/2013-RA - ORDER NO.37-38/2016 Cus - Dated:- 31-3-2016 - SMT. RIMJHIM PRASAD, JOINT SECRETARY ORDER: These Revision Applications are filed by the Commissioner of Customs, (I G), New Delhi (hereinafter referred to as the Department) and Shri Gagan Preet Singh (hereinafter referred to as Applicant) against the Orders-in-Appeal passed by the Commissioner of Customs (Appeals), New Delhi with regard to Orders-in-Original passed by the Additional Commissioner, of Customs, IGI Airport New Delhi as-detailed in table below: S.No. R.A.No. R.A. filed by O-I-A No./Date O-I-0 No./Date 1. 375/23/B/13-R Shri Gagan Preet Singh CC(A) Cus/218/2013 67/2012 2. 380/86/B/13-R Dy.Commissioner of Customs, NCH, New Delhi Dated 29.04.13 Dated. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiry Shri Munish Dhir also accepted that he was carrying two packets of memory cards in his pockets and these memory cards belonged to Shri Gagan Preet Singh, i.e. Pax-l. Thereafter written notices under Section 102 of the Customs Act, 1962 were served upon both the passengers and contents of which were also read over and explained to them and to both the witnesses in vernacular. The passengers were informed that if they wished, their baggage/person could be examined before a Magistrate or any Gazetted Officer. The passengers gave their written consent on the body of the notices that any Customs Officer could examine their baggage and person and appended their dated signatures in token of their consent in presence of the witnesses. During the personal search of Shri Gagan Preet Singh the items recovered included two yellow khaki coloured plastic coated envelopes duly sealed with adhesive tape which on examination where found to contains Micro SD 2 GB Memory Cards totalling 3400 pcs, Indian currency ₹ 1650, Hong Kong Dollar-40 and Thai Baht 40, Samsung Mobile Phone Model No. GT-E 1088C with Vodafone sim card, Passport No. F7683784 dated 17.05.2006 in respect of Shri Gagan Pree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they had committed an offense punishable under Section 132 and 135 of the Act, ibid and were accordingly produced before the Magistrate on 18.05.2011 and were sent to judicial custody on 18.05.2011. Both the passengers were released on bail on 25.05.2011 by the Learned ACMM, Patiala House Court, New Delhi. 2.4. Subsequent to the investigations, combined Show Cause Notice was issued to both the Pax on 09.112011. The Show Cause Notice was adjudicated by Additional Commissioner of Customs (IGI) Airport, New Delhi who vide Orders-in-Original No.67/2012 dated 28.09.2013 ordered: (i) denial of free allowance of ₹ 12,000/- each to Shri Gagan Preet Singh and Shri Munish Dhir on account of various acts of omission and commission as discussed above. (ii) confiscation of 6800 pcs of Memory Cards valued at ₹ 10,74,000 /- from both the pax under Section 111 (d), (i), (l) and (m) of the Customs Act, 1962, however option was given to Shri Gagan Preet Singh (who is the owner of the confiscated goods) to redeem the same on payment of redemption fine of ₹ 2,50,000/- under Section 125 of the Act, ibid. (iii) confiscation of two bottle of scotch whiskey of Chivas Regal v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e value of Micro SD Cards under confiscation after giving 40% rebate under Rule 7 of the Customs Valuation Rules 2007 or to accept the value of the memory cards 2GB appraised by the DRI in the case of Mr. PX. Tiwari. That when number of bill of entry relied upon by the Addl. Commissioner has not been mentioned in the adjudication order passed by the Addl. Commissioner of Customs. 4.12 That no interest is leviable under Section 28AB on the goods seized under Section 110 of the Customs Act. Section 28AB is applicable only in the case of recovery of duties not levied or short levied or erroneously refunded under Section 28 of the Act. That the goods were seized by the Customs Department and were with the Customs Department. There is no question of short levied or not levied or erroneously refunded under Section 28 of Act. That Section 28 of the Customs Act, 1962 is not applicable in their case. That Section 28 is applicable only when there is order of clearance passed by the proper officer and the proper office has to issue Show Cause Notice for duties not levied or short levied or erroneously refunded is to be issued within one year from the date of passing of the order by the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the order does not appear to be legally correct. 5. An application for condonation of delay in filing Revision Application is also filed by the department applicant on the following grounds: 5.1. That a revision application against Orders-in-Appeal No. CC(A)Cus/Air/218/ 2013 dated 29.04.2013 in respect of Shri Gagan Preet Singh passed by Commissioner (Appeals), New Delhi has been filed on 27.08.2013 i.e. after lapse of three months time as prescribed under Section 129 DD (IA). That the date of filing of this application is within the condonable period of further three months' time as prescribed under proviso of Section 129DD (2) of the Customs Act, 1962. 5.2. That the said Orders-in-Appeal was dispatched from the office of the Commissioner (Appeals) New Delhi on 08.05.2013 and was received in the office of the Commissioner of Customs, New Delhi on 13.05.2013. 5.3. That the last date of filing the revision application was due on or before 12.08.2013. 5.4. That the delay is due to inadvertent mistake of law and is not intentional, it is genuine and bonafide. 6. Personal hearing in this case held on 02.09.2015 was attended by Ms. Harsimran Kaur, Attorney on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also imposed upon the applicant under Section 112 ibid. Aggrieved by the said order, the applicant filed appeal before Commissioner (Appeals), who vide impugned Order-in-Appeal allowed 20% abatement on the value of impugned goods and reduced the quantum of redemption fine and penalty. Now the applicant has filed Revision Application on the grounds stated in para 4.1 and department applicant has filed Revision Application on the grounds stated in para 4.2. above. 10. Government observes that the applicant has contested the valuation of goods, pleaded for reduction of redemption fine and personal penalty and setting aside of demand of interest under Section 28 AB. The Department on the other hand is contesting the 20% abatement allowed by the impugned order and the reduction in redemption fine and penalty. 11. As regards the valuation of the goods, the Department had contended that allowing abatement of 20% by the appellate authority is arbitrary and without any legally justifiable ground vis-a-vis the NIDB data relied upon by the adjudicating authority. Whereas the applicant has contented that the appellate authority should have allowed deduction upto 40% as in some other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds imported into the country irrespective of mode of import viz cargo, baggage, post etc. How these goods will be cleared upon import is provided for in separate Sections. While clearance of imported goods is covered under Chapter VII, clearance of baggage and post articles are covered under Chapter XI of the Act. 12.1.2. Section 28 of the Customs Act, 1962 on the other hand provides for the recovery of any duty which has not been paid, short paid or erroneously refunded and reads as under: Section 28-Recovery of duties not levied or short-levied or erroneously refunded-(1) Where any duty has not been, levied or short-levied or erroneous/y refunded, or any interest payable has not been paid, part-paid or erroneously refunded, for any reason other than the reasons of collusion or any willful mis-statement or suppression of facts. (a) the proper officer shall, within one year from the relevant date, serve notice on the person chargeable with the duty or interest which has not been so levied or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to Show Cause why he should not pay the amount specified in the notice; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contentions to the proper officer. Section 78-Determination of rate of duty and tariff valuation in respect of baggage- The rate of duty and tariff valuation, if any, applicable to baggage shall be the rate and valuation in force on date on which a declaration is made in respect of such baggage under Section 77 . 2.2 Government finds that in the present case the applicant failed to declare the impugned goods imported as baggage thereby violating the provisions of Section 77 of the Customs Act, 1962. The said goods were undisputedly chargeable to appropriate duty under Section 12 read with Section 78 of the Act. The applicant has imported the impugned goods chargeable to duty as baggage as laid down under Section 12 of the Customs Act, 1962 and failed to pay the duty at the time of import. He carried the said goods with an intention to evade payment of the Customs duty leviable on these goods. Therefore duty was rightly demanded under Section 28 of the Act ibid and the demand confirmed after following due process of law. When duty was not paid at the time of import, the interest is chargeable on the duty amount where duty has not been paid on the goods in terms of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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