TaxTMI 
TaxTMI 
TaxTMI 
2016 (6) TMI 189
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....as found that the said parcel contained 246 cartons of Davidoff brand cigarettes, made in Germany totally valued at Rs. 2,46,000/- as detailed in the Mazahar dated 10.04.2011. None of the cigarette cartons contained any statutory pictorial health wearing. The same were seized by the SIO under the Mahazar dated 10.04.2011 on the reasonable belief that the said-goods have been smuggled into India in contravention of the provisions of customs Act, 1962 and are, therefore liable for confiscation. 2.1 Further, verification made with Parcel Supervisor, Mangalore Railway Station revealed that the said parcel was booked at Kanhangad Railway station in Kerala. The Railway Authorities were requested vide letters DRI/MRU/INVN/CIG/2011 dated 11.04.2011 and 09.05.2011, to furnish copy of the receipt along with complete details of sender and declared contents of the parcel. The Commercial Supervisor, Southern Railway, Kanhangad, vide his letter No. KZE 724219 along with a certified copy of the forwarding note dated 09.04.2011. * Name & address of the consignor: Kareem,Pallikere, Keekanam (PO)" Kanhangad Phone no. 08089295113; * Consignee: Self (Kareem), Mangalore, * Consignee: Self goods: ....
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....cartons of cigarettes; that the amount of Rs. 450/- included Railway Booking Charges etc. That he paid another Rs. 900/- to Shri Hamza towards onward transportation from Mangalore to Mumbai. 2.3 Shri Hamza of Bekal, who is working as a Porter at Kanhangad Railway Station was summoned on 26.05.2011 and his statement was recorded under Section 108 of the Customs Act, 1962. Shri Hamza in his statement dated 26.05.2011 interalia stated that the consignment in question was brought for transporting to Mumbai by Shri Kareem of Kanhangad; that Shri Kareem had come to him for the first time somewhere in the month of January 2011 enquiring about booking a parcel to Mumbai; that he had informed Shri Kareem that booking could not be made directly to Mumbai from Kanhangad, as there was no Mumbai bound trains stopping at Kanhangad Railway Station for more than three minutes; that on that particular day, Kareem had booked a consignment to Mumbai via Mangalore, that subsequently, on 09.04.2011 he had come again and approached him for booking such a consignment to Mumbai; that he helped Shri Kareem to get the booking done this time also that he identified the copy of railway parcel Receipt No. 724....
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....was adjudicated Accordingly, the Additional Commissioner of Customs passed the order vide Order-in-Original No. 01/2912-ADC dated 17.02.2012 and ordered:- a. confiscation of the seized 246 Cartons of Davidoff brand cigarettes (made in Germany) valued at Rs. 2,46,000/- in terms of Sections 111 (d) of the Customs Act, 1962 read with Customs Baggage Rules, 1988 and Sl. No.21 of General Notes regarding Import Policy in ITC (HS) Classifications of Export & Import items and Cigarettes and Other Tobacco Products (Packaging and labelling) Rules, 2008 as amended. b. confiscation of the plastic gunny bag and the three card board carton boxes used for packing the said goods referred at Sl. No. (i) above under Section 118 (a) of the Customs Act, 1962. c. Imposed penalty ofRs.50,000/- (Rupees Fifty thousand only) under Section 112 (b) of the Customs Act, 1962 on Shri Abdul Kareem, for his act of omission and commission by which the goods are rendered liable to confiscation under Section III and Section 118 (a) of the Customs Act, 1962. 3. Being aggrieved by the said Order-in-Original, the applicant filed appeal before Commissioner (Appeals) who vide his Order-in-Appeal No. 142/2012 dated....
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....recorded by a Gazetted Officer and the later being a voluntary statement given by the 'Noticee', has got much difference in the eyes of law. That the applicant never gave any confessional Statement as found by the lower authority rather the statements were recorded under threat and coercion. That the applicant had retracted the statement given under Section 108 of the customs Act. That the Commissioner (Appeals) ought to have considered this matter and set aside the impugned order. That the order of the lower authority is illegal, arbitrary and unsustainable in the eyes of law, liable to be set aside. 4.4 That the lower authority, in its impugned order, found that the statement given by the applicant was a voluntary statement and that there is no evidence to prove that the statement was recorded under threat. That the finding of the lower authority exhibits poor reasoning ability as nobody can bring any evidence to the effect that the statement, recorded within the walls of the Custom Office, was taken under threat. That retraction is the privilege granted by the law, which the applicant had resorted through his counsel. That the impugned order Is illegal, arbitrary and unsustaina....
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....ion of cigarettes. That in this case there is nothing on records to prove that the applicant was engaged in any act of production, supply, import or distribution of cigarettes. That in the absence of any such evidence, the order of absolute confiscation of the subject goods, plastic gunny bags and cardboard carton boxes suffers severe legal infirmity, meriting outright rejection. 4.8 That the subject goods not being purchased by the applicant for the sale is not covered within the ambit cigarettes and other Tobacco products (Packing and labelling) Rule 2008 That the applicant had purchased the impugned goods for his use and had transported the same to Mangalore for his convenience. That the DRI officials have seized the goods while on transit and not when the applicant attempted to sell or supply them to anybody. That in the absence of any sale or supply of goods in violation to any law for the time being in force, the order of imposing penalty on the applicant cannot be maintained. That the applicant had not committed any act violating the provision of Customs Act or any other law for the time being in force. That the applicant never submitted that he is aware of the confusabilit....
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....x Court judgements about the burden of proof. That the 1st lower authority has not appreciated the recent decision of the Apex Court in this matter. That once smuggling is alleged, the burden of proof initially lies with the department. That in the instant case the lower authority has nothing on record to establish a prima facie case of smuggling upon the applicant. That the strenuous efforts taken by the 1st lower authority was to cover the lacunas in investigation and to order absolute confiscation as well as penalty. That the provisions of law cannot be permitted to use for convenience rather it has to be used to meet the end of justice. That the Commissioner (Appeals) ought to have considered this matter and set aside the order supporting evidence, merits absolute rejection. 5. A Show Cause Notice was also issued to the Respondent Commissionerate on 03.10.2013, in response to which the following submissions have been made: 5.1. That the applicant while sending the impugned cigarettes as a Railway parcel suppressed the actual description of the goods. That instead of 246 cartons of cigarette, the applicant falsely described the goods as clothes. That The cigarettes borne brand....
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....ds were removed from various airports mainly Calicut airport and he intended to sell the same at Mumbai. 6. An application for condonation of delay in filling Revision Application is also filed by the applicant on the following grounds:- 6.1 That vide Order-in-Original 01/2912-ADC dated 17.02.2012, the Additional Commissioner of Customs ordered for absolute confiscation of the Cigarettes. 6.2 That the impugned goods were not imported evading payment of custom duty. That there is no evidence on record to prove that the subject goods were imported resorting the method of smuggling. That there is nothing on the record to prove that the subject goods are smuggled goods and the order of confiscation under Section 111 (d) and imposing penalty under Section 1132 (b) of customs Act, 1962 cannot be maintainable and has no legal sanctity. 6.3 That the Commissioner (Appeals) vide Order-in-Appeal No. 142/2012 dated 23.08.2012 (despatched on 31.08.2012) dismissed the appeal of the applicant. That the said order was received by the applicant on 06.09.2012 but the applicant accidently misplaced the said order. That the applicant later on went abroad or employment and his relatives effectively....