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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 ..... he 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 liable to confiscation under Section 111 of the said Act, or abets the same, or acquire possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under the said Section 111. As Commissioner (Appeals) has erred in holding that the goods have not been held to be liable for confiscation, Government thus holds that penalty is rightly imposed under Section 112 of the Act ibid by the original authority. - Decided in favor of revenue. - F.No.380/65/B/13-RA - ORDER NO. 39/2016 CUS - Dated:- 28-4-2016 - SMT. RIMJHIM PRASAD, JOINT SECRETARY ORDER: This Revision Application is filed by Commissioner of Customs Bangalore (hereinafter referred to as the Department) against the Order-in-Appeal No. 53/2013 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary to any prohibition imposed by or under this Act or any other law for the time being in force shall be liable for confiscation; whereas in terms of Section 111 (o) of the Customs Act, 1962, any goods exempted, subject to any condition, from duty or any prohibition in respect of the import hereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the condition was sanctioned by the proper officer shall be liable for confiscation. Further, as per Section 112 (a) read with Section 112 (i), envisages that any person who in relation to any goods does or omits to do any act which act or omission would render goods liable to confiscation under Section 111, shall be liable to penalty. Hence, the 6.2 Kgs of silver coins brought into the country by him were liable for confiscation under Section 111 of the Customs Act, 1962 read with Customs Notification No.172/1994 dated 30.09.1994 and the Antiquities and Art Treasures Act, 1972 and the passenger is liable for penalty under Section 112(a) read with Section 112 (i) of the Customs Act, 1962. 2.3 In view of the above, Show Cause Notice C. No. \/111/48/27/91/2011 AP d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1% Secondary and Higher Education Cess on the Customs duty. (iv) Shri Archie Maru did not know/furnish the value of the stated goods and also did not have produce any relevant purchase invoice at the time of clearance of the said goods. Therefore, appropriately, as per the best judgment method of valuation as in Rule 9 of Customs Valuation Determination of Value of Imported Goods) Rules 2007, read with Section 14 of the Customs Act, 1962 the total value of goods so imported by him appears to be ₹ 3,62,396/- as detailed below: Weight of silver coins imported Prevailing rate on 14.07.2011 total value of silver coins Rate of custom duty Custom duty + cess Total custom duty 6.2 kgs Rs.58,451 / per kg Rs.3,62,396 35% + 3% on 35% Rs.1,26,839 + ₹ 3,805 Rs.1,30,644 Para 5 sub Para (i) (ii) of the SCN dated 18.102011 was substituted by the following sub-paras: i) The benefit of Customs Notification No. 172/94 dated 30.9.94 should not be denied to Shri Archi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 72/1994 was extended to the goods. When it is found that the passenger is not eligible for such benefit of Notification owing to non-fulfillment of condition of stay abroad for not less than six month, and the demand is raised, the passenger has claimed before the Appellate Authority that the goods are not silver coins but are silver coated coins. It is a settled law that what has been admitted need not be proved. That the passenger has admitted the goods to be silver coins and cleared the same as silver coins. That the passenger at the time of appeal cannot claim that the goods are silver coated coins having cleared them as silver coins and it is not proper for the Commissioner (Appeals) to entertain such a contention at this stage. That the findings of Commissioner (Appeals), on valuation of the goods, are based on the contention put forth as a matter of afterthought by the passenger and hence, the same are not acceptable. 4.2 That the Commissioner (Appeals) failed to appreciate that Section 28 of Customs Act, 1962 does not make challenge of assessment as a prerequisite for demand of duties short-levied, not levied etc. The interpretation put forth in the Order-in-Appeal wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly. The arguement that the benefit under Notification No. 172/94 was extended to the goods is also not true. 5.3 That the baggage receipt no. 2668 dated 14.07.2011 is the only document which reveals the assessment and rate of duty. However, no where it is mentioned on the said document the benefit of Notification no. 172/94 is extended to the goods shown as 'Silver faded coins for study' and weight is shown as 6.2 Kgs approximately. The aforestated inconvertible documentary evidence would prove that respondent had never accepted the assessment of goods as silver coins and benefit of Notification 174/94 was never extended to the goods. Admittedly, except the goods no other documents like purchase bill was available at the time of assessment and the assessment was evidently made on best judgment basis by the assessing officer. 5.4 That the contention regarding extension of benefit under the Notification No. 172/94 at the time of clearance of goods was neither mentioned in the show cause notice nor in the corrigendum issued to the respondent. In the circumstances that the contention of the applicant at this stage that the passenger had admitted the goods as silve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evision application for making interference of this settled legal position, which is also in tune with the wordings embodied in Section 112 of the Customs Act. 5.9 That in view of above, it is prayed that Revisionary Authority may be pleased to: a) Adjudge the question of maintainability of the revision application as a preliminary issue, basing on the contention of limitation of time and a further reasons mentioned above. b) Abstain from annulling the order in appeal and from passing any other order, which are detrimental to the interest off respondent. c) To dismiss the revision application upon proper appreciation of the facts and question of law involved in the case. 6. An application for condonation of delay in filing Revision Application is also filed by the Department on the following grounds: 6.1. That the applicant is preferring an appeal against the Order-in-Appeal No. 53/2013 dated 01.02.2013/13.02.2013 passed by the Commissioner of Customs(Appeals), Bangalore vide which the Commissioner (Appeals) has set aside the Order-in-Original and upheld the present respondent's appeal seeking to set aside the Order-in-Original. 6.2. That the applicant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. From a perusal of records, Government observes that the Revision Application dated 14.05.2013 was received on 21.05.2013 whereas the impugned Order-in Appeal was received by the Department on 18.02.2013. As such, the applicant filed this revision application in 02 days only after initial 03 months period, which falls within condonable limit of 03 months under Section 129 DD (2) of the Customs Act, 1962. Hence, Government condones the said delay and proceeds to decide the issue on merits. 10. On perusal of records, Government observes that the respondent upon arrival at the Bangalore International Airport at 23:45 hours on 13th July 2011 by flight number MH 192 had imported 6.2 kgs of silver coins as baggage. The said silver coins, which are antiques in as much as they were more than 100 years old, were cleared on payment of duty in foreign currency of US $ 210 vide Baggage Receipt No. 2668 C dated 14.07.2011 calculated at the rate of ₹ 1500/- per Kg and 2% of Education Cess and 1% of Secondary and Higher Education Cess on the said rate. A show cause notice dated 18.10.2011 and corrigendum dated 19.01.2012 was issued to the respondent demanding duty after denying benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lver faded coins (study purpose) and duty was paid in convertible foreign currency amounting to USD 210. The duty payment receipt bears the signature of the respondent and there is no evidence on record to show that he paid the duty under duress or not of his free will. In fact the respondent had signed the duty payment receipt in token of having accepted the description of goods as silver coins besides levy of duty of USD 210 at the rate of ₹ 1500 per kg on 6.2 kgs of silver coins in convertible foreign currency (which is as per Notification No. 172/94). Therefore, Government opines that the contention of the respondent that he had never accepted the assessment of goods as silver coins is not tenable. Moreover, the observation of the Commissioner (Appeals) that the department has confirmed the duty without checking the purity of silver is also not tenable as the respondent has not objected to it at the time of clearance and is nothing but an afterthought by him before the Commissioner (Appeals). It is a settled position of law that what is accepted need not be proved. Government finds that the impugned goods have rightly been assessed as silver coins. 13. The Department h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red on payment of duty at a concessional rate of duty under a conditional notification applicable to bonafide passenger coming to India after a stay of not less than six months abroad. In the present case, the respondent did not fulfill this condition and thus was not eligible to import silver as brought by him as baggage and was neither eligible for the benefit of the said notification. Government therefore holds that the differential duty has been rightly demanded under the provisions of Section 28 of the Act. 14. Commissioner (Appeals) has also held that if proposal for confiscation is not made in the show cause notice the offended goods cannot be confiscated. Government observes that the show cause notice dated 18.10.2011 read with corrigendum dated 19.01.2012 clearly describes the violations made by the respondent under Section 111 (d) and (o) of the Customs Act, 1962. The respondent in the present case stayed abroad for less than 6 months and was accordingly not eligible for import of silver as baggage let alone for benefit of Notification 172/94. Further as per the Antiquities and Art Treasures Act, 1972 no person shall engage in business of selling or offering to sell an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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