TaxTMI 
TaxTMI 
2013 (10) TMI 1305
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.... of assorted polished diamond valued at Rs. 7,80,982/- were recovered. The adjudicating authority after following due process of law confiscated the said goods under Section 111(d)(I) & (m) of Customs Act, 1962. However, an option to redeem the same on payment of redemption fine of Rs. 2,00,000/- was given to the said passenger under Section 125 of Customs Act, 1962. A penalty of Rs. 75,000/- was also imposed on the said passenger under Section 112 of Customs Act, 1962. 3. Being aggrieved by the said order-in-original, applicant filed appeal before Commissioner (Appeals), who rejected the appeal. 4. Being aggrieved by the impugned Order-in-Appeal, the applicant has filed this revision application under Section 129DD of Customs Act, 1962 before Central Government mainly on the following grounds : 4.1 The applicant respectfully submits that the impugned order is ex-facie, illegal, erroneous and unsustainable and deserves to be quashed and set aside. 4.2 At the outset, the applicant reiterates, confirms and adopts the facts and grounds as mentioned in the appeal filed before the Commissioner (Appeals) as if the same forms part of this application. 4.....
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....ut any conditions. 4.8 The Commissioner (Appeals) failed to appreciate that while the FTP 2009-14 explains the term 'passenger baggage', the Foreign Trade Act or the rules made thereunder including the FTP 2009-14 and/or the Customs Act, 1962 or the rules made thereunder do not define or explain the terms 'bona fide baggage', 'bona fide household goods' or 'personal effects' or 'commercial/trade goods'. In this view of the matter, the applicant is unable to understand as to the basis on which the Commissioner (Appeals) held the subject goods viz. polished diamonds as 'not bona fide baggage'. 4.9 The applicant has been submitting that the subject diamonds were extracted from gold jewellery, which was inherited by her from her mother and grandmother. She even offered to produce documentary proof in respect of the extraction charges paid by her. 4.10 In the aforesaid background, the applicant submits that both the Commissioner (Appeals) and the adjudicating authority have committed a serious error in confirming the levy and collection of duty on the subject goods by classifying the same as baggage. In other words despite the duty under Chapter 71 of Customs Tar....
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....different paper packets in her handbag. The said diamond were valued at Rs. 7,80,982/- (CIF) and Rs. 10,52,402/- (LMV). The diamonds were attempted to be smuggled into India without making any declaration before Customs under Section 77 of Customs Act, 1962. In her statement recorded under Section 108 of Customs Act, 1962, the passenger had stated that she did not declare the said item before Customs and had brought them for making jewellery in India, that she visited India 5 times after Nov. 2006 and she had inherited the diamonds from her mother and grandmother from father side in Nov. 2006. On perusal of records, Government observes that import of trade goods namely polished diamonds valuing Rs. 7,80,982/- through baggage mode that too undeclared by the applicant in commercial quantity does not constitute a part of bona fide baggage in terms of Section 79 of Customs Act, 1962 and violates the provisions of Sections 77, 79, 11 of Customs Act, 1962, Para 2.20 of Exim Policy 2004-2009, the provision of Section 3(3) of Foreign Trade (Development and Regulation) Act, 1992 and Rules 11 & 14 of Foreign Trade (Regulation) Rules, 1993. The adjudicating authority after following due proce....
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....e non-dutiable goods are neither required to be declared nor attract duty at baggage rate. He has relied upon judgment of Hon'ble Supreme Court in the case of Associated Cements Companies Ltd. v. CC - 2001 (128) E.L.T. 21 (S.C.). In the said case., it was held that drawings and design classifiable under CTH 4906 was chargeable to nil rate of duty as per Tariff and said drawing/design were not dutiable articles and therefore no customs duty was leviable thereon even as a part of passenger baggage. Government notes that in the said case the passenger has declared the contents of his baggage before customs and complied with the provision of Section 77 of Customs Act. In the instant case, passenger has not made any declaration before customs and violated the provision of Section 77. It is relevant to reproduce para 8 of impugned Order-in-Appeal where under the judgment of Hon'ble Supreme Court in the case of Commissioner of Customs (Prev.), Mumbai v. M. Ambalal & Co, 2010 (260) E.L.T. 487 (S.C.) is discussed. "8. I find that in the case of Commissioner of Customs (Prev.), Mumbai v. M. Ambalal & Co. [2010 (260) E.L.T. 487 (S.C.)], the Hon'ble Supreme Court examined a case in whi....
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.... law, cannot be valid import under the Act. Goods so imported cannot therefore, be treated to be lawfully "imported goods" within the definition of that term in Section 2(25) of the Act. Therefore, the respondent was not entitled to the benefit, of the notification. The learned counsel for the respondent would contend that by virtue of the Notification No. 247-Cus., dated 2-8-1976, rough diamonds are exempted from payment of duty under the Act and, therefore, adjudicating authority was not justified in directing the respondent for payment of duty under the Act for release of the confiscated goods. We find no merit in the contention. The goods become exempted goods provided all the conditions of the Notification are fulfilled. If any condition of the Notification is not fulfilled, goods are not exempted goods. [See Union of India v. Ganesh Metal Processors Industries - 2003 (151) E.L.T. 21 (S.C.)]. 13. In short, question before us is whether goods that are smuggled into the country can be read within the meaning of the expression 'imported goods' for the purpose of benefit of the exemption notification. We are of the view that 'smuggled goods' will not come within the defini....
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....hough goods were not chargeable to duty. In our considered view, this decision would not assist the respondent herein. In the present case, as we have already stated that the notification exempts certain articles when imported into India from payment of duty under the Act. The import must be valid and in accordance with the provisions of the Act. In the present case, it is the finding of the Bombay High Court that the respondent-firm had imported diamonds of foreign origin without a valid license and that finding has become final. Therefore we agree with the learned senior counsel Sri R.P. Bhatt on this aspect. The Tribunal, in our view, erred in holding that the situation was covered by the case of Associated Cements Company (supra) decided by this Court." 9. As per the ratio of the judgment above, the question first is not whether the goods are dutiable, but whether the goods are importable in the manner done. Further even if their importability is 'free' the question to be asked is whether they are legitimately imported in the manner done or whether the mode of import indicated that it was done in breach of the rules and procedures, and was hence smuggled added to which ....