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TMI Blog2016 (7) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... in foreign currency of US $ 210 vide Baggage Receipt No. 2668 C dated 14.07.2011 calculated at the rate of Rs. 1500/- per Kg and 2% of Education Cess and 1% of Secondary and Higher Education Cess on the said rate under Notification No. 172/94 dated 30.09.1994. Further, from the records it is seen that the passenger has left India on 04.07.2011 and has returned to India on 13.07.2011 and also during the period prior to 13.07.2011 he had not stayed abroad for six months. 2.1 In terms of Customs Notification No. 172/1994 dated 30.09.1994 as amended from time to time, among other things, any passenger of Indian origin can import silver as baggage upto 100 Kgs provided he/she is coming to India after a period of not less than six months stay abroad. However, short visits during these six months shall be ignored if the total duration of such short visits does not exceed 30 days and the passenger has not availed exemption under this scheme at the time of such short visits. Further as per the Antiquities and Art Treasures Act, 1972, no person shall engage in business of selling or offering to sell any antiquities except in accordance with the license granted under the said Act. 2.2 From ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Show Cause Notice dated 18.10.2011 was issued and the following allegations were leveled against the pax. (i) As per ITC (HS) to Foreign Trade Policy 2009-2014, relating to classification 98030000, all dutiable articles, imported by a passenger/member of a crew, in his baggage is restricted, except as provided under Rule 3(1)(h) of Foreign Trade (Exemption from Application of Rules in Certain Cases) Order, 1993 and Rule 3 of the Baggage Rules, 1998, read with Notification No. 136/1990 Cus dt.20/3/1990, as amended. (ii) It appears that 6.2 Kgs of silver coins imported by Shri Archie Maru is not a bonafide baggage, as defined under the provisions of Section 79 of the Customs Act, 1962, read with the Baggage Rules, 1998. Further, para 2.2 of the Foreign Trade Policy allows only bonafide household goods and personal effects as part of passenger baggage, as per limits, terms and conditions thereof, as per the Baggage Rules,1998, formed under the provisions of Section 79 of the Customs Act, 1962. Therefore the silver coins weighing 6.2 Kgs imported by Shri Achie Maru are not a bonafide baggage and therefore is restricted in terms of Rule 3 of Baggage Rules, 1998. Hence, the aforesa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of law. 2.5 The show cause notice was adjudicated and the adjudicating authority vide Order-in-Original No. 57/2012 dated 13.08.2012 ordered: a) payment of Customs duty of Rs. 1,30,644/- under Section 28 of Customs Act, 1962. b) appropriation of the Customs duty already paid vide Baggage receipt No.2668C dated 14.07.2011 to the Government account. c) payment of differential Customs duty along with applicable interest with effect from 14.07.2011 under Section 28 of Customs Act, 1962. d) The impugned goods were held to be liable for confiscation under Section Ill(d), Ill(o) of the Customs Act, 1962. However, confiscation was not ordered as the goods are already released to Shri Archie Maru. e) imposed personal penalty of Rs. 35,000/- on Shri Archie Maru Under Section 112 of the Customs Act, 1962. 3. Being aggrieved by the said Order-in-Original, respondent filed appeal before Commissioner (Appeals) who vide Order-in-Appeal No. 53/2013 dated 01.02.2013 allowed the appeal of the respondent and set aside the Order-in-Original. 4. Being aggrieved by the impugned Order-in-Appeal, the Department has field this revision application under Section 129 DD of Customs Act, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice. That the Commissioner (Appeals) erred in setting aside the penalty imposed under Section 112 ibid. 4.4 That the order passed by the appellate authority is not legal, proper and correct and needs to be set aside. 5. A show cause notice was also issued to the Respondent on 09.09.2013, in response to which the following submissions have been made: 5.1 That the revision application filed by the Commissioner of Customs, Bangalore is a time barred application. That the date of communication of the order is shown as 18.02.2012 whereas the verification certificate attached with revision application bears the Additional Commissioner's signature of dated 14.05.2013. Moreover the date of passing the impugned ORDER-IN-APPEAL is shown as 13.02.2013. In absence of any documentary evidence to show the date of communication of the ORDER-IN-APPEAL, it appears the revision application is filed beyond the stipulated period of three months from the date of communication of the order. In that event and further in the absence of any application by invoking the second proviso to Section 129DD, the present application is liable to be dismissed at the very threshold. 5.2 That th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of goods invoking the provisions of Section Ill(d) & (o) of the Customs Act, 1962 would not legally survive. The applicant clearly spelt out in the purported corrigendum that 'Para 5 Sub Para (i) &(ii) of SCN dated 18.10.2011 is substituted by the following sub-paras' and accordingly the proposal for confiscation made in the show cause notice was substituted with the proposal for the denial of the benefit of Notification no. 172/94 and also with the proposal for the demand of higher rate of duty under Section 28 of the Customs Act. This express substitution cannot be termed as 'mere omission to quote the specific laws proposing the confiscation of goods'. That the judgments of the Hon'ble Supreme Court relied on by the applicant are not relatable to the facts of the present case and the said judgments would not come in handy for establishing the case of the revision applicant. That the show cause notice and the corrigendum issued are materially different and that fact has been properly appreciated by the Commissioner (Appeals). 5.8 That the Commissioner (Appeals) was perfectly justified in holding that if the goods are not liable for confiscation, the resulta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision Application after the stipulated period of three months under Section 129DD (2) of the Customs Act 1962, as the Department has filed the Revision Application 02 days after initial stipulated period of three months. 9.1. Government observes that Rule 129DD (2) reads as under: "(2) An application under sub-section (1) shall be made within three months from the date of 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' From a perusal of the above proviso it is clear that delay in filing an application can be condoned subject to the satisfaction of the Central Government that the applicant was prevented by sufficient cause the presenting the application within time. The applicant vide their letter C.No.V111/28/1334/2012-Cus.Prev dated 23.03.2016 informed that they are seeking condonation of delay of 01 day in filing the appeal against the impugned Order-in-Appeal No. 53/2013 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D of the Customs Act, 1962 before the Central Government on the grounds mentioned at para 4 above. 11. Government observes that the main issues of contention are whether the goods have been rightly valued as silver coins and not silver coated coins; whether demand can be raised without reviewing the assessment order; whether goods can be confiscated without specific clause proposing confiscation and whether penalty under Section 112 ibid is imposible. 12. Government notes that the Department in its grounds of revision has stated that the passenger himself has accepted the assessment of the impugned goods as silver coins valued at Rs. 3,62,396/- which were cleared on payment of duty in terms of Notification No. 172/94 dated 30.9.94 at Rs. 1500/kg along with applicable cess. The respondent accepted the value of coins at Rs. 3,62,396/- under Rule 9 of Customs Valuation Rules, 2007 read with Section 14 of Customs Act, 1962 and paid duty of USD 210 at a concessional rate, thereby accepting the assessment of goods as silver coins. However, the respondent in his counter reply submitted that he has never accepted the assessment of goods as silver coins and duty was not paid accordingly: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis of (i) his own ascertainment of such duty; or (ii) the duty ascertained by the proper officer the amount of duty along with the interest payable thereon under Section 2844 or the amount of interest which has not been so paid or part paid". From a plain reading of the above provisions Government observes that it is clear that whenever any duty has not been paid or has been short paid the proper officer shall within one year from the relevant date demand such duty from the person chargeable with the duty. It provides for the recovery of any duty which has not been paid, short paid or erroneously refunded. No review order is required to be passed for issue of demand for any short payment as per the provisions of the said Section. 13.2 This view of Government also finds support in the ruling of the Hon'ble Supreme Court in the case of Union of India vs Jain Shudh Vanaspati Ltd 1996(86) ELT 460 (SC) where the Apex Court held that show cause notice under Section 28 of the Customs Act, 1962 for demand of duty can be issued without revising the assessment order. Commissioner (Appeals) has thus erred in holding that challenge of assessment order is a prerequisite for rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions is not fatal when there is sufficient arguerment in the show cause notice. Similarly in the case of Fortune Impex vs Commissioner 2004(167) ELT A134(SC) the Apex Court again upheld the Tribunal's findings that non mention of particular Section of Customs Act will not vitiate the proceedings when allegations and charges were mentioned in clear terms in show cause notice. 15. Government notes that the applicant has also contended that the Commissioner (Appeals) has erred in setting aside the penalty imposed by the original adjudicating authority under Section 112 of the Act, ibid on the grounds that goods are not liable for confiscation. Government observes that Section 111 of Customs Act, 1962 deals with confiscation of improperly imported goods. In this case the original authority has clearly held the impugned goods to be liable for confiscation under Section Ill(d) & (o) of the Customs Act, 1962 but did not order for actual confiscation of the goods as the same were already released to the respondent. Further, in terms of Section 112 penalty shall be imposed on a person involved in acts of omission or commission, in relation to any goods which renders such goods liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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