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TMI Blog2008 (10) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant. Since both the appeals are arising out of the findings in the same Order-in-Original, they are being disposed off by a common order. 2. Appeal No. C/347/03-Mum. is filed by Mr. P. Kumar against the order of the adjudicating authority imposing penalty of Rs. 1 lakh under the provisions of Section 112(a) of the Customs Act, 1962. Appeal No. E/378/03-Mum. is filed by one Shri Pichai Rakchue against the absolute confiscation of the imported goods and rejection of claim of ownership of the goods therein. 3. The necessary facts that arise for considerations are that on 15-5-2002, officers of Air Intelligence Unit while screening the post parcels arrived by flight No. SQ-412 detained a package, bearing mail no. 107 weighing 24 Kgs, suspected to contain restricted/prohibited goods. The said package was examined on 16-5-2002, in presence of two witnesses and it was found that it contained a metal box with marks and no. EE-020244642111 and consigned to Shri P. Kumar. The said metal box was found to contain different size of crystal of CUBIC ZIRCONIA of "Favorite" and "Signity" brands. The said contents of the package were declared as "fashion material" and no value was decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, thus, appellant cannot be considered as importer, and hence, there is no question of imposition of penalty. On merits, it is his submission that the appellant Shri P. Kumar was doing business with Thailand National Mr. Pichai Rakchu. It is his submission that he has ordered for imitation jewellery and fashion material, as samples for ascertaining the market in India. The learned Counsel submits that on being summoned, the appellant immediately contacted to Thailand National Shri Pichai Rakchu. Learned Counsel draws our attention to letter written by Thailand National, wherein the Thailand National, informed that the goods landed in India was sent by mistake by his staff and the said goods may be returned back to him by next flight. 6. It is his further submission that provision of Section 111(l) and 111(m) cannot be invoked in this case for the purpose of confiscation of consignment as the said consignment has arrived in India by Post parcel. it is his submission that the issue as regards the mis-declaration of the goods in terms of value and description under the provisions of Section 111(l) and 111(m), in respect of the goods received by post parcel, the issue is decided b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knows or has reason to believe are liable to confiscation under Section 111." 10. It can be noticed from the above reproduced Section that the provisions of Section 112 cart be brought into effect only if any person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111 of the Customs Act, 1962. In this case the adjudicating authority has held that the goods are liable for confiscation under Section 111(l) and 111(m) of the Customs Act, 1962. It is undisputed that the goods "Cubic Zirconia" arrived through post parcel in India. The said invoice declared as goods are of fashion material and the consignor was shown as Mr. Pichai Rakchu, it is also undisputed that the appellant herein had not come to claim the post parcel from the foreign post office. It is also undisputed that the appellant vide letter dated 26-6-2002 informed Mr. Pichai Rakchu as under:- "To Mr. Pichai Rakchu, 16th Floor, Vorawat Bldg., Unit 1603, 849, Silom Road, Bangrak, Bangkok- 10500 Thailand Dear Sir, This is with reference to the consignment of Cubic Zirconia sent to me by EMPS Post Parcel. I am extre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le for confiscation and the declarant liable to penalty. In the case of baggage, as per Section 77 of the Customs Act the declaration is made by the passenger orally. Section 82 which deals with post parcels is entirely different in construction and in coverage. It does not require the importer to make a declaration. The declaration made by the exporter abroad is deemed to be an entry for the goods. This is a very important difference. Even if an entry is found to be wrong the responsibility of wrong declaration cannot be fastened upon the importer. it would appear that Section 111 of the Act takes cognizance of this situation, Clauses (l) and (m) Section In read as below: "(l) any dutiable or prohibited goods which are not included or are in excess of those included in the entry made under this Act, or in the case of baggage in the declaration made under Section 77. (m) any goods which do not correspond (m) in respect of value or in any other particular with the entry made under this Act or in the case of baggage with the declaration made under Section 77 in respect thereof or in the case of goods under transhipment, with the declaration for transhipment referred to in the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customs authorities and the said letter reads as under:- "To The Deputy Commissioner of Customs, Chhatrapati Shivaji International Airport, Air Intelligence Unit, Sahar, Mumbai - 400 099. Sir, Sub : Return of Parcel - request for Ret: EMS Parcel No. EE020244642TH dated 13-5-2002 - reg. The above mentioned post parcel consisting of different grades Cubic Zirconia was wrongly addressed/consigned to Shri P. Kumar, No. 1166 AP, Fourth Street, Thendral Colony, Chennai - 600 040. This is actually meant for a different customer in a country other than India. We regret very much to state that because of the slackness of our employees in the store department, this mistake of wrong dispatch had crept in. We therefore request for return of the parcel on charges "To Pay". Thanking you, Yours faithfully, (Pichai Rakchu)" 15. It can be noticed from the above re-produced letter that the exporter while informing the consignee regarding negligence of the employee, has also written to the customs authorities regarding return of the consignment. The adjudicating authority's order of absolute confiscation of the said goods have been set aside by us on the ground t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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