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TMI Blog2024 (4) TMI 1100X X X X Extracts X X X X X X X X Extracts X X X X ..... by section 111(f) and are liable to confiscation under that clause. They have also not been indicated in the Bill of Entry and therefore, they are also liable to confiscation u/s 111(l). They do not correspond to the declaration made in the Bill of Entry and therefore, they are also liable to confiscation u/s 111(m). Therefore, the confiscation of the cigarettes under sections 111(f), (l) and (m) need to be upheld. Since the cigarettes are prohibited goods and are certainly harmful to the society being not as per the statutory requirement of health warnings in India, the Commissioner was correct in absolutely confiscating them and not giving an option of redemption. HDPE granules imported and declared were used to conceal the cigarettes smuggled in the containers. Therefore, they are liable to confiscation u/s 119. However, as they are not prohibited goods, the Commissioner gave an option of redemption u/s 125. We find this part of the order to be fair and balanced requiring no interference. The cigarettes were liable to confiscation and therefore all persons whose acts or omissions rendered them liable to confiscation are liable to penalty u/s 112. Ajay, Parshottam and Gagan are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es the value of the goods. The value of the smuggled cigarettes was Rs.1,22,03,500/- and the penalties imposed on Ajay, Parshottam and Gagan under this section is Rs. 20,00,000/- each and the penalty imposed on Guha Sarkar and Co. and Sunil Dixit is Rs. 5,00,000/-. We find these penalties to be balanced considering the gravity of the offence. These also call for no interference. Thus, we uphold the impugned order insofar as these five appellants are concerned and dismiss all five appeals. X X X X Extracts X X X X X X X X Extracts X X X X ..... tam and they formed a firm in the name of Shivoy Enterprises and have been engaged in customs clearance work until their Customs Broker's licence was suspended in a case booked by the SIIB. Thereafter, they started working using the CB licence of Shri Guha Sarkar & Co. of Kolkata which issued its power of attorney to its employee Sunil. On his (Ajay's) and Parshottam's instructions, the Bill of Entry was filed in the name of R S Import and Export through which four containers were imported. The goods were imported by him (Ajay), Parshottam and Gagan and through this Bill of Entry they imported foreign origin cigarettes totalling 53,80,000 of Gudang Garam, Esse light, Djarum Black and Dunhill brands concealing them in the HDPE granules which were declared. The import was financed by the three of them and the profits were to be shared one-third each. They had obtained the IEC and details of RS Imports and exports from Shri Rakesh Sagar, his uncle and used the details to import the goods in this consignment. 10. After completing the investigation, DRI issued the SCN under section 124 proposing confiscation and imposition of penalties which culminated in the impugned order. Submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by DRI and cannot be sustained in view of the judgment of Canon India holds no water because this is not a SCN issued under section 28 demanding duty. In Canon India, the Supreme Court was examining the situation where the Bill of Entry was assessed by the proper officer and thereafter an SCN was issued demanding duty under section 28 by the officers of DRI. In this case, there is no demand of duty but only proposal to confiscate the goods and impose penalties. Therefore, the SCN was issued under section 124 and not under section 28; (ii) The submission of the learned counsel that the seized goods (case property) has been illegally disposed is without any basis. The Commissioner has, in the impugned order, categorically recorded that the goods were available. In fact, the appellants were also allowed redemption of the HDPE granules imported by it on payment of redemption fine; (iii) The appellant had filed WP (C ) 2524/2019 in the High Court of Delhi on the same issue and then it choose to withdraw the WP. The High Court was pleased to dismiss the WP as withdrawn by its order dated 23.5.2022. While seeking to withdraw, the appellant had not even sought leave of the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rket value of the goods. All this leaves no iota of doubt that Ajay, Parshottam and Gagan were the actual importers of the consignment and a benami Bill of Entry was filed in the name of R S Imports and Exports. Ajay, in his statement, also explained that he obtained the details of RS Imports and exports through one, Rakesh (who is a noticee but not an appellant before us). 15. It is also a matter of record that HDPE granules alone were declared in the Bill of Entry and 53.8 lakh cigarettes were smuggled in behind the HDPE granules in the containers. Since these were not only not declared but they also did not contain the statutory health warning, they were prohibited and they were confiscated. 16. The HDPE granules used to conceal the cigarettes were also confiscated but they were allowed to be redeemed. As importers, Ajay, Parshottam and Gagan say that they had sought refund of the duty which they paid instead of redeeming the goods. 17. Learned counsel for the appellants also argued that the seized goods were illegally disposed of by the department. The Commissioner has, in the impugned order, categorically recorded that they were available. We have no reason to doubt when it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 proviso to sub-section (1) of section 54 112. Penalty for improper importation of goods, etc.--Any person,-- (a) 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, or abets the doing or omission of such an act, or (b) who acquires 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 section 111, shall be liable,-- (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty not exceeding the value of the goods or five thousand rupees, whichever is the greater; (ii) in the case of dutiable goods, other than prohibited goods, subject to the provisions of section 114A, to a penalty not exceeding ten per cent. of the duty s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the appellants was HDPE granules and the cigarettes were not declared. Therefore, the cigarettes were squarely covered by section 111(f) and are liable to confiscation under that clause. They have also not been indicated in the Bill of Entry and therefore, they are also liable to confiscation under section 111(l). They do not correspond to the declaration made in the Bill of Entry and therefore, they are also liable to confiscation under section 111(m). Therefore, the confiscation of the cigarettes under sections 111(f), (l) and (m) need to be upheld. Since the cigarettes are prohibited goods and are certainly harmful to the society being not as per the statutory requirement of health warnings in India, the Commissioner was correct in absolutely confiscating them and not giving an option of redemption. 22. HDPE granules imported and declared were used to conceal the cigarettes smuggled in the containers. Therefore, they are liable to confiscation under section 119. However, as they are not prohibited goods, the Commissioner gave an option of redemption under section 125. We find this part of the order to be fair and balanced requiring no interference. 23. Penalty under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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