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TMI Blog2020 (10) TMI 1138X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of Section 112 of the Customs Act, 1962. The show-cause notice states that the value of the recovered goods has been ascertained on the basis of reference value found in different product websites as detailed in Annexure A. However, on-going through the said Annexure, it is seen that in fact there are 4 Annexures A, B, C and D, for the goods seized from the 4 appellants respectively. On-going through such Annexure, we do not find that though the Annexures contain details like description, Model, make, country of origin. However, the addresses of web sites from where the values are taken are not mentioned. Copies or screenshots of websites displaying the value of the products is not also made available. Similarly, there was no re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent reputed brands, Sandisk pen drives, USB flash drives, RAM cards, Laptops, Watches of foreign origin in their checked in baggage; they have walked through the Green Channel and have not declared the goods, which cannot be considered personal baggage, being in commercial quantity. 2. During investigation, it was also found that the appellants have smuggled the goods on previous occasions. A show-cause notice was issued to the appellants proposing confiscation of the goods totally valued at ₹ 1,00,62,979/- and proposing imposition of penalties on the appellants under Section 112(a) and (b) of the Customs Act, 1962. The said show-cause notice was adjudicated by Learned Commissioner, vide Order No. Kol/ Cus /Commissioner of Customs/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Sl. No. (i) (ii) above. Hence the present appeals. 3. The Learned Counsel for the appellants submits that the DRI has erred in arriving at the value of the goods on the basis of prices allegedly available on the internet, ignoring the fact that the said items are available in open market in India at considerably lower prices. He submits that in terms of Section 112, in case the goods are not prohibited, the penalty imposable is not exceeding the duty sought to be evaded on such goods or ₹ 5,000/- whichever is greater. The Learned Counsel moreover submits that the principles of natural justice have not been followed inasmuch as the appellants were not given an opportunity to explain the proper value of the goods and valuation ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time being in force. However, by the deeming provisions contained in Section 2 (33) of the Customs Act, 1962, the goods assumed the character of being prohibited goods and thus penalties levied were justified. 5. At this juncture, the Learned Counsel for the appellants, submits that as per the Hon ble High Court of Calcutta, the goods cannot be considered as prohibited goods. Hon ble High Court held, in the case of Gopal Saha Vs Union of India reported in 2016 (336) ELT 230 (Cal), that: 15. The expression goods in respect of which any prohibition is in force in the context of Section 112 of the Act would imply goods which are prohibited from being imported and not goods which have been smuggled into the country in contravention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned. Copies or screenshots of websites displaying the value of the products is not also made available. Similarly, there was no reasoning, for adoption of such values and the Rules under which the same is arrived at, has been given either in the SCN or OIO. Therefore, we find that it is not possible for anyone to verify the claim of the department. This certainly amounts to violation of principles of natural justice and for that reason itself, in addition to the arbitrary manner in which the value was decided, renders the order not legally maintainable. However, as the Learned Counsel for the appellants does not insist on revaluation at this juncture, we refrain from remanding the matter back to commissioner for reconsideration. 7. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. Redemption fine (Rs) Penalty (Rs.) 1. Noor Alam C/76346/2017 70,000/- 35,000/- 2. Roz Mohammed C/76345/2017 1,20,000/- 60,000/- 3. Sarfaraz Mohammed C/76534/2017 90,000/- 45,000/- 4. Rajab Ali C/76347/2017 1,10,000/- 55,000/- 8. All the four appeals are disposed of in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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