TaxTMI 
TaxTMI 
2016 (7) TMI 776
X X X X Extracts X X X X
X X X X Extracts X X X X
....s asked whether he was carrying any dutiable goods to which he replied in the negative. It was found that the applicant had left the column no. 6 of the disembarkation slip (Customs portion) blank. Not being satisfied with the reply and compounded by the fact that there was a specific intelligence about him, the applicant was diverted for X-ray scanning of his two hand bags. The personal search and search proceedings of his two hand bags were conducted before two panchas. As a result of his personal search currency INR 430, USD 24 and HKD 20, Disembarkation Slip, E Ticket booked on 02.04.2012, Boarding Pass of the Pax, two used mobile phones-Sony Ericssion and Zen Mobile and sales invoice no. 07048 dated 03.04.2012 were recovered. Of these items the currency and used mobile phones being within the permissible limits and being used personal effects were subsequently returned to the Pax. 2.1 Thereafter, the officers opened and examined the two hand baggage of applicant one-by-one in the presence of the witnesses and in the presence of applicant. The baggage was found to contain the following electronic goods as detailed below: S.No. Memory Card Brand Manner of Packing Qty. foun....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... along with his brother-in-law Shri Lalit Kumar started a company namely M/S Rich Hood Trading Company Pvt. Ltd dealing in the trading of memory cards; that they used to purchase memory cards from local markets in Delhi and sell them in the local markets of Hisar and its surrounding markets; that on an average they used to earn about Rs. 20,000/- each per month; that he had visited China and Hong Kong on four occasions including this visit; that 6714 nos. of memory cards were recovered from both his handbags and were seized under Section 110 of the Act, ibid; that he had purchased 6114 pieces of memory cards vide sales invoice no. 07048 dated 03.04.2012 from M/S Sun -Infinity Devices, Hong Kong; that he purchased another 600 pieces of memory cards from some other shop at Hong Kong without any purchase invoice; that there was no specific buyer for these memory cards; that he had to sell these memory cards in the open market of Haryana; that he visited China/Hong Kong on three earlier occasions only to explore the business prospects for their company but did not bring any dutiable goods while returning to India; that during this present visit to Hong Kong he carried with ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ngly, the Additional Commissioner of Customs(Airport), IGI Airport, New Delhi passed the order vide Order-in-Original No. 16/2013/AK/ADC/IGI dated 05.03.2013 and ordered: (i) Denial free allowance of Rs. 35,000/- to Shri- Vinay Kumar on account of various acts of omission and commission. (ii) Confiscation of the seized memory cards valued at Rs. 10,82,633 /- recovered from the applicant under Section 111(1) & (m) of the Customs Act, 1962 with an option to redeem the same on payment of redemption fine of Rs. 2,50,000 /- under Section 125 of the Act ibid and on payment of appropriate duty and interest under Section 28 and 28 AB of the Act ibid. (iii) Confiscation of two hand bags used for concealing the aforesaid seized goods under Section 118 and 119 with an option to redeem the same on payment of redemption fine of Rs. 3,000/- under Section 125 0 the Act, ibid. (iv) Imposition of penalty of Rs. 2,00,000 /- on the applicant for the various acts of omission and commission committed by him under Section 112 of the Customs Act, 1962. 3. Being aggrieved by the said Order-in-Original, the applicant filed appeal before Commissioner (Appeals) who vide Order-In-Appeal No. CC(A) Cus/598....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... levied or erroneously refunded within one year from the date of passing of the order by the proper officer. That neither their case is of provisional assessment under Section 18 of the Customs Act, 1962 nor their case is the case of refund of Customs Duty. That in their case no order of clearance has been passed by the proper officer. Therefore, Section 28 of the Customs Act, 1962 is not applicable. 4.4. The applicant placed reliance on the decision of CESTAT in the case -of Essar Oil Ltd vs. Commissioner of Customs (Prev), Jamnangar-2006 (197) ELT 450 (Tri-Mumbai) as under: "Demand-short levy-Section 28 of the Customs Act, 1962 is applicable when duty has been short-levied or non-levied pursuant to an order of assessment and since no order of clearance under Section 47 ibid issued, no short few or non-levy of duty can arise for recovery in terms of Section 28 ibid " 4.5. Section 44 of the Customs Act clearly stated that Section 47 of the Customs Act is not applicable to the goods imported under baggage and goods imported by post. There is no question of payment of interest under Section 28AB. 4.6. The applicant prayed for setting aside the Order passed in respect of demand o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Customs Act, 1962 are not applicable in baggage cases; that demand/recovery of duty not levied can be done under Section 28 of the Act, ibid if the order is passed by the proper officer for clearance of goods under Section 47 of the said Act; therefore, when Section 28 of the Customs Act, 1962 is not applicable then demand of interest under Section 28AB is also not maintainable. Moreover, the confiscated goods were in possession of the department. Reliance has been placed by the applicant on the decision of the CESTAT in the case of Essar Oil vs. Commissioner of Customs(Prev.), Jamnagar reported in 2006 (197) ELT 450 (Tri-Mumbai). 9. Government further observes that Chapter V of the Customs Act, 1962 deals with levy of, and exemption from, Customs duties and Section 12 which is the charging Section reads as under: 'Section 12: Dutiable goods- (1) Except as otherwise provided in this Act, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act, 1975 or any other law for the time being in force, on goods imported into, or exported from India. (2) The provisions of sub-section (1) shall ap....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is made voluntarily or after determination of the duty under that section, (2) Interest at such rate not below ten per cent and not exceeding thirty-six percent, per annum, as the Central Government may, by notification in the official gazette, fix, shall be paid by the person liable to pay duty in terms of Section 28 and such interest shall be calculated from the first day of the month succeeding the month in which the duty ought to have been paid or from the date of such erroneous refund, as the case may be, up to the date of payment of such duty. (3) Notwithstanding anything contained in sub-section (1) no interest shall be payable where- (a) the duty becomes payable consequent to the issue of an order, instruction or direction by the Board under Section 151 A; and (b) such amount of duty is voluntarily paid in full, within forty-five days from the date of issue of such order, instruction or direction, without reserving any right to appeal against the said payment at any subsequent stage of such payment' 12. Further, Government notes that Chapter XI of the Customs Act, 1962 specifies the special provisions regarding baggage, goods imported or exported by post and st....