TaxTMI 
TaxTMI 
2016 (7) TMI 793
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....of the case are that Shri Gagan Preet Singh, r/0 147, Bharat Nagar, Delhi-52 holder of Indian Passport No.F-7683784 dated 17.05.2006 issued at Delhi and Shri Munish Dhir, S/o Shri Tarsem Lal Dhir, resident of N.L. 198, Mohalla Mohindru, Jalandhar holder of Indian Passport No. E-4003707 dated 20.012003 issued at Jalandhar, arrived from Hong Kong by flight no. IT-032 on 17.05.2011 at IGI Airport, Terminal-3, New Delhi. On the basis of suspicious movement, the applicant was intercepted at the exit gate while crossing the green channel. On being asked by the Air Customs Officer(Preventive) whether he was carrying any contraband or any dutiable goods or anything to be declared to the Customs in his baggage or on his person, the applicant replied in the negative initially. Not being satisfied with his reply and in the absence of any declaration in the disembarkation slip (Customs portion), he was diverted for scanning of his baggage through the X-ray machine/scanner situated in the Arrival Hall. At this stage two independent witnesses were called to watch the proceedings. The passenger identified as Shri Gagan Preet Singh from his passport, was carrying one checke....
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....of baggage of Shri Gagan Preet Singh resulted in the recovery of used clothes and two Chivas Regal Scotch Whiskey (12 Years of one litre each). The entire proceedings were conducted under a panchnama dated 17/18.05.2011 drawn on the spot. The value of impugned goods i.e. memory cards was taken based on the NIDB data and 6800 pcs. of 2GB memory cards were valued at Rs. 10,74,000 /- 2.1 Statement of Shri Gagan Preet Singh was recorded on 18.05.2011 under Section 108 of the Customs Act, 1962. He inter alia stated that he was 12th pass from Delhi and was engaged in his own business of mobile phones and their accessories at Karol Bagh, Ghaffar Market, New Delhi outside the shop no. 107 for the last five years; that he went to Hong Kong on 15.05.2011 by Flight No. IT 031 and stayed at Star Guest House, Nanthan Road, Hong Kong; that he returned to India by flight no. IT 032 on 17.05.2011 and was intercepted at exist gate while crossing the green channel; that when he was asked whether he was carrying any contraband or any dutiable goods or anything to be declared to the Customs in his baggage or on his person, he replied in negative; that not being satisfied with his reply and in the abs....
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....ayment of redemption fine of Rs. 1000/- under Section 125 of the Act, ibid. (iv) demand and recovery of Custom duty amounting to Rs. 3,87,321/- involved on the seized/confiscated 6800 pcs of 2 GB Micro SD Cards valued at Rs. 10,74,400/- @ 36.05% ADV. from Shri Gagan Preet Singh under Section 28 of the Customs Act, 1962. (v) demand and recovery of Custom duty amounting to Rs. 4,906/- involved on the seized 02 bottles of Chivas Regal Scotch Whiskey of one litre each, valued at Rs. 3066/- @ 150% ADV from Shri Gagan Preet Singh under Section 28 of the Customs Act, 1962. (vi) recovery of interest at the appropriate rate involved on the amount of Customs duty demanded from Shri Gagan Preet Singh under Section 28 AB of the act, ibid. (vii) imposed a penalty of Rs. 2,00,000 /- upon Shri Gagan Preet Singh, under Section 112 of the Customs Act, 1962 for various acts of omission and commission as brought out supra. 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/218/2013 dated 29.042013 modified the Orders-in-Original to the following extent: (a) allowed the 20% abatement for cal....
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.... proper officer. Therefore Section 28 of the Customs Act, is not applicable with the result Section 28 AB is inapplicable erroneously refunded. 4.13 The reliance is placed on the decision of the Hon'ble CESTAT in-the case law Essar Oil Ltd Vs. Commissioner of Customs (Prev.), Jamnagar -2006(197) ELT 450 (Tri-Mumbai). 4.1.4 That value of goods be reappraised, redemption fine and personal penalty be reduced, set aside the order in respect of demand of interest under Section 28AB. 4.2. Grounds of Revision tendered by the Department 4.2.1 That no written submissions made by the Shri Gagan Preet Singh and Shri Munish Dhir before the appellate authority has been mentioned in the order. Therefore it is not known as to what was the prayer of the applicants before the appellate authority and on account of non-mentioning such prayers and grounds of appeal make the order passed by the appellate authority as not speaking order to this extent. 4.2.2. That the appellate authority has reduced the value determined by the adjudicating authority by 20% as per the residuary provisions of the relevant law while neglecting the NIDB data relied upon by the adjudicating authority on the grounds ....
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....t should be extended to the present case. She also gave reference of Government of India's order No. 167/2013-Cus dated 22.07.2013. That regarding interest under Section 28 AB, the question does not arise as this is not a case of short levy/non levy of duty but seizure under Section 110 to which Section 28 AB is not applicable. That in this regard CESTAT's decision in case of Essar Oil Ltd Vs CC (Prev), Jamnagar 2006 (197) ELT 450 (Tri-Mumbai) may be referred. None from the side of department attended the hearing. 7 Government has carefully gone through the relevant case records available in case file, oral & written submissions and perused the impugned Orders-in-Original and Orders-in-Appeal. 8. Government first takes up the application for condonation of delay in filing the Revision Application by the department after a delay of 16 days. The applicant vide their letter C. No. dated 14.11.2013 has submitted that the said Orders-in-Appeal was dispatched from the office of the Commissioner of Custom (Appeals) New Delhi on 08.05.2013 and was received in the office of the Commissioner of Customs, New Customs House, New Delhi on 13.05.2013. That the last date for ....
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....ourt in the case of Auto Stores Vs CC (Export), Mumbai has held that available NIDB data of comparable goods to be adopted for assessment-2014(305) ELT A 75(SC). Further it is observed that the applicant failed to produce any invoice or any other documentary evidence in support of his contention. As no supporting document to substantiate the value of memory cards has been produced, there is no infirmity in applying NIDB data which gives price of contemporaneous imports of similar/identical goods. In fact the data relied upon by the Department is not even 3 months old. Hence, the plea of over valuation is not acceptable and the value adopted by the adjudicating authority as per law and does not warrant any interference. 12. Government observes that the second issue on which the present application has been filed by the applicant is regarding the charging of interest under Section 28AB of the Act ibid. Applicant has contended that interest under Section 28AB of the Customs Act, 1962 is not leviable in the instant case as the Section 28 invoked for the demand of duty is not applicable in this case in as much that there is no question of short levied or not levied or erroneously refun....
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....ayable thereon under Section 2844 or the amount of interest which has not been so paid or part- paid. 12.1.3. Section 28 AA/28AB of the Customs Act, 1962 provides for the interest on delayed payment of duty and reads as under: "Section 28AA-Interest on delayed payment of duty- (1) Notwithstanding anything contained in any judgment decree, order or direction of any Court, Appellate Tribunal or any authority or any authority or in any other provisions of this Act or the rules made there under, the person, who is liable to pay duty in accordance with the provisions of Section 28 , shall, in additional to such duty,-be-liable to pay interest;-if any, at their fixed under sub-section (2), whether such payment 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 shah' 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....
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.... for seizure of goods liable for confiscation for improper importation into the country in terms of Section 111. Seizure and confiscation of goods does not absolve such goods from levy of duty and interest in turn is charged on such duty not paid. 12.4 Government observes that the order of CESTAT in the case of Essar Oil Ltd. vs Commissioner of Customs(Prev.) Jamnagar, 2006 (197) ELT 450 (Tri-Mumbai) relied upon by the applicant is not applicable to the facts of the present case as the case law relates to an order of assessment under Section 47 which is not applicable to baggage. 13 Government further observes that the department has contended that in spite of serious case of smuggling of memory cards the penalty and fine has been reduced significantly by the Commissioner (Appeals) without any justifiable reasons and the applicant without giving any grounds, has pleaded for reduction in fine and penalty. 13.1 Government notes that it is a fact on record that not only where the impugned goods concealed and not declared by the passenger, the same quantity of goods were recovered from another passenger Shri Munish Dhir who smuggled the goods on his behalf. Government further notes ....