1991 (12) TMI 166 - AT - Customs

Customs Act Violations Overturned, Smuggling Allegations Dismissed, Import Restrictions Exemption Emphasized

KULJEET KAUR Versus COLLECTOR OF CUSTOMS

The Tribunal set aside the department's confiscation order, ruling in favor of the applicants. The department's allegations of smuggling and Customs Act ... Confiscation of goods in transit Issues Involved:1. Confiscation of goods in transit.2. Alleged smuggling and violation of Customs Act.3. Non-service of notice and violation of natural justice.4. Applicability of Import Trade Control Order and Customs Act provisions.5. Lack of evidence and assumptions by Customs authorities.Detailed Analysis:Confiscation of Goods in Transit:The applicants, Afghanistan nationals, ordered watches from Hong Kong to be delivered to Kabul. The goods, while in transit through India, were confiscated by Indian Customs at the Foreign Post Office in New Delhi. Customs alleged the parcels were being smuggled into India despite being under the custody of the Indian Postal Department and intended for Kabul. The applicants were not provided details of the confiscation, and the goods were ultimately re-exported on payment of a fine.Alleged Smuggling and Violation of Customs Act:Customs authorities confiscated the goods citing violations under Sections 111(d), 111(m), and 111(n) of the Customs Act, 1962, and the Import and Export Trade Control Act. They claimed the goods were prohibited and dutiable, and the parcels lacked proper declarations. The department argued that the goods were likely meant for disposal in India, raising suspicions due to the large quantity of watches and their common P.O. Box addresses in Kabul.Non-service of Notice and Violation of Natural Justice:Applicant Abdul Rahim was not served a show cause notice or given an opportunity to respond, violating principles of natural justice. For other appellants, the Collector's order was not a speaking order, as it did not duly consider all submissions made in response to the show cause notice and during personal hearings.Applicability of Import Trade Control Order and Customs Act Provisions:The judgment highlighted that the goods were in transit through India under the custody of Postal Authorities, satisfying conditions under Saving Clause 11(l)(e) of the Import Trade Control Order, 1955. Section 84 of the Customs Act, 1962, which covers goods imported or exported by post, was not referred to in the show cause notice or the Collector's order. The relevant provisions of the Import Trade Control Order exempt goods in transit through India from import restrictions, provided they remain in postal or customs custody.Lack of Evidence and Assumptions by Customs Authorities:The Customs department failed to produce evidence supporting their charges, including the alleged absence of declaration slips. The judgment noted that the responsibility for ensuring proper declarations lies with postal and customs authorities at the exporting end (Hong Kong). The department's case was based on assumptions and presumptions without factual or legal basis. The goods were never out of postal control, and the entire matter was handled cursorily based on mere apprehensions.Conclusion:The Tribunal found the department's case to be entirely misconceived, based on incorrect provisions and assumptions. The impugned order was set aside, and the appeals of all appellants were accepted with consequential relief. The amount recovered as fine from the appellants was ordered to be refunded immediately.