TaxTMI 
TaxTMI 
2017 (2) TMI 961
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....ifferent dates and that on the basis of the statements allegedly given by them, show cause notices dated 24-04-2015 were issued to them. Under the show cause notices, issued not only to the petitioners herein but also to two other partnership firms by name M/s. Star Impex and M/s. VRPL Overseas, all of them were called upon to show cause as to why a certain quantity of cigarettes imported under different bills of entry and available in 2 live containers should not be confiscated and duty, interest and penalty should not be levied not only against the live containers but also against the imports made in the past. These show cause notices were issued under Section 28 (4) of the Customs Act, 1962. 4. The petitioners sent replies, almost on identical lines on 27.04.2016, claiming that they did not import any material including baby diapers and cigarettes. Thereafter, the petitioners were called upon to attend a personal hearing. The petitioners appeared through counsel and reiterated their contentions. 5. But, the 2nd respondent in these writ petitions passed Orders-in-Original dated 25-05-2016 directing (1) the confiscation of the cargo in 2 live containers and (2) the impositio....
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....in respect of cargo de stuffed from both these containers. But the 2nd respondent came to the conclusion that the goods cleared by M/s. Star Impex from 11 containers in the past and the goods cleared by M/s. VRPL Overseas under two containers in the past, could have also contained cigarettes concealed in baby diapers and that therefore customs duty, interest and penalty are also liable to be imposed, in respect of those 13 containers. It is this action of the 2nd respondent which is assailed by the petitioners to be completely without jurisdiction. 11. The main grievance of the petitioners is that the cargo cleared in the past, after following the procedure prescribed by law cannot be the subject matter of the adjudication proceedings, merely on account of the fact that the two live containers contained contraband goods. According to the petitioners, the conclusion reached by the 2nd respondent was only presumptuous. Even the statements made by the concerned officers in respect of the past containers showed that all the procedure prescribed by law were followed before those 13 containers were cleared in the past. Therefore, to subject those past containers to adjudication, on th....
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....paid weight was around 6 tonnes. It is a fact that the Cargo Weight of each of all the containers was declared as 6225 kgs. Even if assuming that all the cartons are of Diapers only, considering the weight of 425 cartons of Baby Diapers to be 5000 kgs as argued by Sri Azmathulla, the total weight of the goods consisting of 825 cartons of Diapers should be around 10000 kgs. However the declared weight was around 6 tons only. Even in respect of the two containers which consisted of more than 600 cartons of Cigarettes the Cargo Weight was declared as 6225 kgs only. Further, out of the two containers that were examined one container consisted of 610 cartons of cigarettes and the other container consisted of 709 cartons of Cigarettes. However, the declared weight is exactly 6225 kgs in respect of both the containers. Thus, it is clear that there is gross mis-declaration of the weight in respect of all the containers. Thus the weight factor cannot be basis to argue that the past containers consisted only Diapers.. 16. If the 2nd respondent had come to the conclusion that the past containers could have also contained the cigarettes, on the basis of the weight of a particular quantity o....
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....t the 17 packages selected at random, to contain Baby Diapers. Further, the cigarettes were concealed behind baby diapers packages. There were 425 packages of diapers. That means to approach a cigarette package more than half of the container should be de stuffed. In the realm of self assessment, where more reliance is placed on the importers self declaration, it is not feasible to de-stuff half of every container. Such action would be resorted only when there is some doubt regarding the cargo. In the impugned case, the notices have conspired in such a way that there is no scope for suspecting that the container consisted of cigarettes. Such a deep rooted conspiracy cannot be detected in a routine examination of goods. Even for a specialized Investigating Agency like DRI, it took such a considerable time to unearth the conspiracy. Thus just because no cigarettes could be detected during the course of examination of the goods, it cannot be concluded that the containers consisted of only Diapers. 20. But the conclusion drawn by the 2nd respondent, which we have extracted above, is in the realm of speculation. The same cannot be permitted in view of the fact that different officers....