TaxTMI 
TaxTMI 
2020 (11) TMI 590
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....atches, 163 Counterfeit of Longines brand watches, 5543 smart watches, 8 V8 Stick Kit (Smok), 8 V8 Stick Kit (Alien) and 4370 mobile back covers are smuggled goods under Section 2(39) and section 2(33) of the Customs Act, 1962; 2. I hold that 16 Chopard brand watches, 63 Ulysse Nardin brand watches, 33 Rolex brand watches, 18 Guess brand watches are liable to confiscation under Section 111(f), (h), (i), (j) and (m) of the Customs Act, 1962; 3. I hold that the seized 258 Counterfeit of Tissot brand watches, 17 Counterfeit of Rado brand watches, 28 Counterfeit of Armani brand watches, 305 Counterfeit of Calvin Klein brand watches, 48 Counterfeit of Michael Kors brand watches, 39 Counterfeit of Swarovski watches, 163 Counterfeit of Longines brand watches are liable for absolute confiscation under Section 111(d), (f), (h), (i), (i) and (m) of the Customs Act, 1962 read with Rule 6 of the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 further read with Section 11 of the Customs Act, 1962; 4. I hold that the seized 5543 smart watches are liable to confiscation under Section 111(d), (f), (h), (i), (j) and (m) of the Customs Act, 1962 read ....
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....o pay a fine of Rs. 5,00,000/- (Rupees five lakh only) in lieu of liability to confiscation of the seized 4370 mobile back covers, if any person(s) come forward to claim ownership of these mobile covers; 11. I determine and confirm the demand of evaded amounts of chargeable and payable customs duty of Rs. 2,21,62,347/- (Rupees two crore twenty one lakh sixty two thousand three hundred forty seven only) under Section 28(8) of the Customs Act, 1962 and such person(s), who make a claim of ownership to these seized goods to pay the same forthwith; 12. I also determine and order payment of interest, at the applicable rates, on the determined and confirmed demand of customs duty of Rs. 2,21,62,347/ (Rupees two crore twenty one lakh sixty two thousand three hundred forty seven only), in terms of Section 28(10) read with Section 28AA of the Customs Act, 1962; 13. I impose a penalty equal to the determined amounts of payable customs duty of Rs. 2,21,62,347/- (Rupees two crore twenty one lakh sixty two thousand three hundred forty seven only) plus determined amounts of payable interest under Section 28(10) and Section 28AA of the Customs Act, 1962 upon such person(....
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....tained under a panchnama dated 05.04.2018. Details of the goods seized and the duty demand on them is as indicated in table below:- S No Description CTSH No Assessable Value Custom Duty Payable 1 Chopard Watches Brand 91011100 16 11318208 4762702 2 Ulysse Nardin brand watches 91011100 63 15966720 6718796 3 Rolex watches brand 91011100 33 22367400 9412202 4 Guess watches brand 91011100 18 78480 33024 5 Counterfeit Tissot watches of brand 91011100 258 98040 41255 6 Counterfeit of Rado brand watches 91011100 17 6800 2861 7 Counterfeit Armani watches of brand 91011100 28 8960 3770 8 Counterfeit Calvin Klein watches of brand 91011100 305 97600 41070 9 Counterfeit of Michael Kors brand watches 91011100 48 23040 9895 10 Counterfeit of Swarovski watches 91011100 39 1560 656 11 Counterfeit of Longines brand watches 91011100 163 61940 26064 12 Smart watches 91011100 5543 2325843 978715 13 V8 Stick Kit (Smok) 85437099 8 13920 3861 14 V8 St....
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....lue of Rs. 1,24,800/-; and 4370 mobile phone back covers, having transaction value of Rs. 2,79,680/- and present market value of Rs. 6,99,200/- be not held liable to confiscation under Section 111(f), (i), (h) and (m) of the Customs Act, 1962; ➢ The evaded amounts of unpaid customs duties totaling Rs. 2,21,62,347/ be not demanded and recovered from them under Section 28(4) of the Customs Act, 1962; ➢ The amount of interest at the applicable rates on the above amounts of demanded unpaid customs duty of Rs. 2,21,62,347/- be not recovered under Section 28AA read with Section 28(10) of the Customs Act, 1962; and ➢ Penalty be not imposed under Section 114A of the Customs Act, 1962 be not imposed; 2.5 The subject notice also called upon Jetmal Bhav Singh (Appellant) and Bipin Gajo Singh to show their cause as to why penalty be not imposed upon them under Section 114AA of the Customs Act, 1962. It also called upon Kishore Vishnu Malusare to show his cause as to why the penalty should not be imposed upon him under Section 112(b) of the Customs Act, 1962. 2.6 The show cause notice has been adjudicated by the Principal Commissioner vide t....
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....lse, and if the Bill of Entry was not produced on the spot, the department should have immediately issued a point by point rebuttal. ➢ Bipin Gajo Singh in his statement dated 16.07.2018, (Para 4 of impugned order) stated as under: He was an employee of Sun Cargo, a courier firm. His firm transported 23 cartons from Chennai to Mumbai by train on 4.04.2018. 10 belonged to the Appellant. The rest belonged to one Kamal Kant. After arrival he loaded the cartons in a hired tempo. ➢ By producing Bill of Entry on the spot the Appellant had discharged the burden under Section 123 (para 21 of the impugned order). The identification "DZ09" on the watches and on the Bill of Entry established co-relation. ➢ The challenge to the panchnama was not made for the first time after 10 months as alleged in para 22 of the impugned order. In fact, it was admittedly made on 25.05.2018 in the advocate's letter. The panchnama dated 5.04.2018 and the entire case, was fabricated by Deepak Pandit, Assistant Commissioner. ➢ The finding in para 18, that the Appellant initially claimed ownership of all seized goods is compl....
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....in the tempo along with the driver and he claimed the ownership of all the goods present in the tempo, only subsequently he kept on changing his stand; ➢ The investigations revealed that no person had come forward claiming the ownership of any of the seized goods; ➢ The Bill of Entry produced by the appellant could not be correlated with the smart watches seized. A fact that has been admitted by the Appellant: ➢ The fact that appellant was never able to establish with proper documents his claim over the seized and confiscated goods is established and the option of redemption of these smart watches has been extended to any person who comes forward claiming the ownership of these goods. ➢ It has been held by the Hon'ble Apex Court in the case of D Bhurmal [1983 (13) ELT 1546 (SC)], that cases of smuggling of the goods which are covered under section 123 of Custom Act, 1962, need not be established with mathematical precision, and even preponderance of the probability that these goods are smuggled goods is enough to proceed against the concerned person from whose possession the goods have been seized. 4.1 We have consi....
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....at he had subsequently learnt from this partner that those goods belonged to D. Bhoormull who left instructions for their storage in the shop. Subsequently the name of this partner was given as Indermul. The Custom Officers attempted to find out and contact this Indermul but without success. Eight days after the seizure, a letter dated June 12, 1962, was received by the Collector of Customs from one D. Bhoormull (Poonawala, temporarily at 98, Narayana Mudali Lane, Madras- 1), claiming ownership of the goods. In this letter it was stated that he had purchased these goods on June 3, 1962 in the local market at Madras through brokers; that he was packing the same till late in the evening, and since he was forced to leave for Bangalore on the call of a friend immediately, he instructed one of the staff of Sha Rupaji Rikhabdas to keep the goods in their shop until his return. This letter of Bhoormull did not contain the names or the particulars of the brokers from whom the goods were allegedly purchased; nor did it refer to any bill, voucher or other document to support the allegation of their having been purchased locally in the normal course of business. On receipt of this le....
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.... further particulars or addresses of the brokers were not disclosed. On March 27, 1963, a revised show-cause notice was sent under registered cover by the Collector of Customs to Bhoormull through his solicitors requiring him to produce within a week the purchase receipts, bills, vouchers, Customs auction-receipts, Central excise auction receipts, licences or any other documents in his possession and to furnish the names of the brokers in the market, their addresses etc. from whom the goods were purchased by him, failing which to show cause against confiscation of the goods. The information called for was not supplied, nor did Bhoormull appear personally before the Collector at any stage. However, on his behalf the Solicitors wrote to the Collector, a letter, dated April 30, 1963, contending that the burden of proving that the seized goods had been illegally imported into India lay on the Customs Department and the non-production of the documents or non-furnishing of the information asked for by the Collector could not justify an inference of illicit importation of the goods. It was added that such goods had been imported as late as 1959/1960 as personal baggages ....
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....s, namely M/s. Gagrat & Co. of Bombay". (d) Despite repeated requisitions made and two show cause notices- given by the Collector, no bill, voucher or other documentary evidence, whatever, regarding purchase of the goods in the recognised markets of the country was produced. At first, even the names of the seller were not disclosed. Later on M/s. Gagrat & Co. cited two brokers whose addresses were not furnished." 4.3 While considering that case Hon'ble Supreme Court has recorded the legal provisions as they existed then in form of Sea Customs Act, in following manner: "Before dealing with the contentions canvassed, we would refer briefly to the relevant, statutory provisions. Section 167(8) of the Sea Customs Act provides for offences punishable to the extent mentioned in the 3rd column of the Schedule appended to that section. Clause (8) of that Schedule provides that if any goods the importation or exportation of which is for the time being prohibited or restricted by order under Ch. IV of this Act be imported into or exported from India contrary to such prohibition or restriction, then (i) such goods "shall be liable to confiscation, and (ii) any person conc....
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.... secrecy of the underworld. The more it is organized, the less are the chances of its detection, and greater the difficulty of proving the offences relating thereto. Laws have therefore been enacted in most countries, which mark a partial or wholesale departure in matters relating to smuggling, from the general principle of penal law, viz., that it is for the State or its Department to prove the offence against the accused or the defendant. Thus in England, S. 290(2) of the Customs and Excise Act, 1952 provides that where in any proceeding relating to Customs or Excise any question arises as to the place from which any goods have been brought or as to whether or not any duty has been paid or any goods have been lawfully imported etc., then the burden of proof shall lie upon the other party to the proceeding. In India, Parliament inserted s. 178-A by the Amending Act 10 of 1957, but it did not, in its wisdom, go as far as s. 290(2) of the English Act. Section 178-A in terms applies to "gold, gold manufacture, diamonds and. other precious stones, cigarettes and cosmetics". With regard to these specified goods if seized under this Act in the reasonable belief that they are smuggled go....
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....iculars of the persons from whom the goods were allegedly purchased, although such information was repeatedly requisitioned from Bhoormull by the Collector, and they were duty bound under s. 171-A disclose it. This contumacious conduct of Baboothmull and Bhoormull strongly pointed towards the conclusion that the goods were smuggled stocks, and in that sense, the inference arising from the circumstances had shifted the onus on the Bhooormull to prove to the contrary. (In this connection, reliance has been placed upon Issardas Daulat Ram and ors. v. The Union of India and ors.[[1962] Supp. 1, SCR 355] and M/s.Kanungo and Co. v. Collector of Customs (Calcutta) [AIR 1972 SC 2136]; (d) The Order of the Collector did not suffer from any apparent error or defect of jurisdiction. His order was based on an appraisement of the circumstantial evidence before him and was consistent with the rules of natural justice. He had given the fullest opportunity, to the Respondent to put forth his case and had issued two show- cause notices to him through his Solicitors. The Division Bench of the High Court exercising jurisdiction under Art. 226 was not competent to go into the question of the ....
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....not require the prosecution to prove the impossible. All that it requires is the establishment of' such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof.; often it is nothing more than a prudent man's estimate as to the probabilities of the case. The other; cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight I of the evidence is to be considered-to use the words of Lord Mansfield in Batch v. Archer (1) [(1774) 1, Cowp. 63 at p. 65] "according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted". Since it is exceedingly difficult, if not absolutely impossible, for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as parts of its primary burden. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating t....
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.... concerned in the smuggling. The propriety and legality of the Collector's impugned order had ;to be judged in the light of the above principles. It is not correct to say that this is a case of no evidence. While it ,is true that no direct evidence of the illicit importation of the goods was adduced by the Department, it had made available to the Collector several circumstances of a determinative character which coupled with the inference arising from the dubious conduct of Baboothmull. and Bhoormull, could reasonably lead to the conclusion drawn by the Collector, that they were smuggled goods. These circumstances have been set out by us earlier in this judgment. We may recapitulate only the most salient among them. The importation of such goods into India had been banned several years, earlier, i.e. of some of them in 1957 and of others in 1960. These goods, without exception, were all of foreign origin. They were of large value of over Rs. 12,000/-. They were all lying packed as if they had been freshly delivered, or were ready for despatch to a further destination. They were not lying exhibited for sale in the showcases of the shop. Baboothmull fro....
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....rary to rules of natural justice there would be no Warrant for disturbing his finding under Art. 226. The collector's order was not of this kind. In the view that the initial 'onus of proof on the Department can be sufficiently discharged by circumstantial evidence, we are supported by the decision of this Court, in Issardas Daulat Ram's case (supra). There, on September 14, 1954, that is, long before the insertion of s. 178-A in the Act, a quantity of gold to a refinery in Bombay was sent for the purpose of melting, The Customs authorities seized this gold when it was being melted. The gold was found to be of foreign origin and had been imported into India in contravention of the Foreign Exchange Regulations Act, 1947. The Collector of Customs confiscated it under S. 167(8) of the'-Act. The legality of confiscation was challenged by a petition under art. 226 of the Constitution before the High Court, on the ground that there was no evidence before the Collector to show that the gold had been imported into India after restrictions had been imposed in March 1947 on its importation. The High Court rejected this contention and dismissed the petition. The same argument ....
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....n of the same. It is not for this Court, in exercise, of its jurisdiction under Art. 226 of the Constitution to revise, set aside or quash this order, in the facts of this case." In appeal on certificate, it was contended before this Court that there was no evidence that these watches had not been illicitly imported 'into India and that the impugned order wrongfully placed the burden on the appellants. Sikri C.J., speaking for the Court, repelled this contention thus "There is also no force in the second point because we do not read the impugned order as having wrongly placed the burden on the appellant. What the impugned order does is that it refers to the evidence on the record which militates against the version of the appellant and then states that the appellant had not been able to meet the inferences arising therefrom. In our opinion, the High Court was right in holding that the burden of proof had shifted on to the appellant after the Customs Authorities had informed the appellant of the results of the enquiries and investigations. This also disposes of the first point. As we have said, the burden was on the Customs Authorities which they discharged by ....
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....inal jurisprudence must equally be invoked". If we may say so with great respect, it is not proper to read into the above observations more than what the context and the peculiar facts of that case demanded. While it is true that in criminal trials to which the Evidence Act, in terms, applies, this section is not intended to relieve the prosecution of the initial burden which lies on it to prove the positive, facts of its own case, it can be said by way of generalisation that the effect of the material facts being exclusively or especially within the knowledge of the accused, is that it may proportionately with the gravity or the relative triviality of the issues at stake, in some special type of cases, lighten the burden of proof resting on the prosecution. For instance, once it is shown that the accused was travelling without a ticket, a prima facie case against him is proved. If he once had such a ticket and lost it, it will be for him to prove this fact within this special knowledge. Similarly, if a person is proved to be in recent possession of stolen goods, the prosecution will be deemed to have established the charge that he was either the thief or had received thos....
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....ion shall apply to gold and manufactures thereof, watches, and any other class of goods which the Central Government may by notification in the Official Gazette specify." 4.6 In case of the "watches", the Section 123 of the Customs Act, 1962 is applicable and the burden to prove that the watches of foreign origin seized by the Customs Authority have been licitly imported, will squarely rest on the person from whose possession the watches are seized or on the person who claims to be the owner of such watches. Learned Counsel for appellant submits that the smart watches, the bone of contention in the present case are not watches and has stated as follows in support of his contention- ➢ "As per the decision of Harmonized System Committee (HSC) in its 55th session held in March, 2015 determined HS classification of wrist wearable device ("Smart Watch") under CTH 8517.62 and it was mentioned that "Smart Watch" is effectively wearable computer. It is a battery operated device in the form of a wrist watch, incorporating a touch sensitive, active matrix, organic light-emitting diode (Amoled) display, a central processing unit (CPU), random-access memory, flash memory, ra....
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....n and personalisation. Smartwatches comes with a variety of different faces, from traditional stylish analogue dials, to more modern and outlandish digital options. Featuring a number of different designs, you can pick a face you like and just get a new one when you get bored of it. With changeable straps, including causal, formal and sporty, you can mix and match your face and strap combos to fit any context." Thus in our view the burden to establish that the seized smart watches are covered by the expression "watch" used in the Section 123 of the Customs Act, 1962. 4.7 Once we hold that Section 123 is applicable to facts of this case, then the next question which needs to be answered is whether Appellants have discharged the necessary burden to establish that these smart watches have been licitly imported into India. To establish the licit import appellants produced a Bill of Entry No.3140294 dated 7.09.2017, filed at Chennai for import of 20,000 smart watches, and have claimed that the smart watches under seizure are part of this consignment. However when asked to establish the correlation between the goods imported under said bill of entry and the seized goods, a....
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....mons to appear on 05.06.2018. As I was in my home town, I could not come. Post delivery of my wife, I contacted one lawyer who informed me to approach this office with all the import related documents. I submit that the copy of duplicate watch claimed by me out of confusion, do not belongs to me and I do not claim the ownership of the copy of duplicate watch which is contained in 07 cartons. I own a shop which deals in mobile accessories only and I am producing the original copies of the following documents to substantiate my claim that I have never dealt in watches. i. All the import related documents ii. Tax invoice for the last six months Q. Please go through the summons dated 29.05.2018. Have you brought the documents sought in the Summons? Ans. I am producing following documents: i. My company maintains two bank accounts: 1st is Axis Bank account number 916020022751713 for the period 1.1.2018 to 11.06.2018 2nd is kotak Mahindra Bank Account Number 1712330430 for the period 1.4.2017 to 10.06.2018. ii. I don't have any purchase order placed to the foreign country. iii. The details of payment made to the foreign p....
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....t approachable, I could not confirmed the same. Also, I was made too scared by neighbors as well as my fellow trades men. Also, I was in lot of mental stress due to my wife critical situation. Q. How you contacted Sun Cargo. What is the address of M/s Sun Cargo? Ans. I met one representative of Sun Cargo at CST, Mumbai named Shri Bipin (mobile number 8210500543). He informed me that they have arranged a tempo bearing registration number MH-04 FP 7421 to send me my consignment. I don't have the address of M/s Sun Cargo. Q. Why didn't you confirm from Shri Bipin about the cartons at CST? Ans. He said that the cartons belonging to me and others have already loaded in Tempo No. MH04 FP 7421 and I can unload my cartons at my location. However, I reiterate that I was under the impression that all the cartons other than mobile covers belongs to me. So, I did not enquire further. Also, I was in lot of stress due to my family problem. But at this point of time I can confidently claim that only the smart watches contained in 10 cartons belong to me. Q. Where is your brother? Ans. Earlier he was one of the two directors in my Compa....
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....otal 17 cartons. I had claimed 10 cartons of smart watch & 7 cartons of wrist watch in my statement dated 05.04.2018. Also, letter produced by my authorized representative confirms that 17 cartons belongs to M/s Jstar Mobile Accessories Pvt. Ltd. Therefore, in both, i.e. my statement dated 05.04.2018 & authorized letter certified by me confirm as the sarce number of cartons i.e. 17 cartons. Q. Shri Kishor, Driver of the said tempo has deposed that all the goods belong to the person accompanying him ie. you. What you have to say? Ans. I have gone through the statement of Shri Kishore and I placed my dated signature of having seen the same. I don't have anything to say on the statement of Shri Kishore Malusare. Q. Please go through the Bill of Entry No. 3140294 dated 07.09.2017 submitted by you. The model shown against the description of goods is DZ09. Do you deals in smart watches? What do you know about the DZ09 smart watches? Ans. I have gone through the Bill of Entry no. 3140294 dated 07.09.2017 submitted by me. Yes. I deal in Smart watches of different type procured from local market and imported by my company. I want to submit that Dz09 i....
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....the remaining of 20000 smart watches for which I have paid Rs. 48,87,298/-. Q. Can you co relate the 5543 smart watches detained by this office with 20000 Dz09 smart watches detailed by any other way/mean? Ans. No. Q. What is shelf life of Smart Watches? Ans. As per my experience, shelf life of smart watches is 3-4 months. After that there are chances of battery leakage, un- functionality due to drying out of battery & not saleable due to software update issue. Q. Where and why you have stored your smart watch from September, 2017 to 5.4.2018, which is a long time as far as shelf life of smart watches are concerned, as stated by you? Ans. Thad stored my smart watches in Chennai with one of my friend. I don't have any proof of storage as ! had stored it with my friend house. I did not get any customer for these 5543 smart watches. Q. As per the tax invoice furnished by you, it is seen that you have sold goods from your registered office situated at Mumbai. Why you have stored your goods at Chennai if your registered office is at Mumbai? Ans. Beside from registered premise located at Mumbai, I had sold some q....
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....ounterfeit items & prohibited item is an offense. Q. Do you have any documents to in relation to other goods viz. wrist watches of various brands, V8 Stick Kit and Mobile back covers? Ans. No. I don't have any documents for these goods. I don't claim these goods." 4.7 Evidentiary value of the statement recorded under section 108 of the Customs Act,1962 has been accepted by the Hon'ble Supreme Court in number of cases. In case of K I Pavunny [1997 (90) ELT 241 (SC)] Hon'ble Court referring to its earlier judgements recorded as follows: "In Naresh J. Sukhawani V/s. Union of India [(1995) Supp. 4 SCC 663] a two-Judge Bench [to which one of us, K. Ramaswamy, J., was a member] had held in para 4 that the statement recorded under Section 108 of the Act forms a substantive evidence inculpating the petitioner therein with the contravention of the provisions of the Customs Act as he had attempted to export foreign exchange out of India. The statement made by another person inculpating the petitioner therein could be used against him as substantive evidence. Of course, the proceedings therein were for confiscation of the contraband. In Surjeet Singh Chha....
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....vocate to which the Appellant Counsel have referred is dated much before these two statements and cannot be said to be a retraction of the statements made subsequently. In absence of any retraction we find these statements as reliable pieces of evidence wherein the appellants have themselves been asked to establish correlation between the Bill of Entry produced by them and the goods seized have failed to establish any such correlation and have admitted that such correlation cannot be established. 4.8 In absence of any evidence to show that these smart watches have been licitly imported into India, and in view of the Section 123 of Customs Act, 1962, we hold that these 5543 smart watches have been illicitly imported and are liable for confiscation under Section 111 of the Customs Act, 1962 as has been held by the Commissioner. Commissioner has allowed the redemption of these 5543 smart watches on payment of redemption fine of Rs. 45 lakhs. For imposing the redemption fine of Rs. 45 lakhs, Commissioner has in para 54 of impugned order recorded as follows: "54. The next comes the issue of the 5543 smart watches. Rule 3 of the Information Technology Goods (Requirements for ....
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....redemption fine is determined after deducting the assessable value as determined and duty payable from the present market value of these goods (i.e. 58,14,607 - 23,25,843 - 9,78,715 = Rs. 25,10,049). Thus in our view the end of justice will be met if we reduce the redemption fine to Rs. 25 lakhs. 4.9 Appellants have contended that the assessable value determined by the Commissioner in the present order is not correct, as it is based on the value determined on the basis of internet price of the seized/ confiscated watches. He also states that these watches have been cleared by the Chennai Customs at much lower assessable as is evident from the Bill of Entry No 3140294 dated 07.09.2017. We are not in agreement with the arguments advanced by the Appellant Counsel, for the reason that it has been categorically admitted by the appellant in his statements referred above that there exists no correlation between the smart watches imported under the said bill of entry and those seized and confiscated. Further Appellant has not been able to produce any document in respect of legal acquisition of these smart watches. He has not produced any trade invoice in respect of these smart watches, ....
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....146; The prices vary from manufacturer to manufacturer and are available in range from Rs. 800 per piece to Rs. 5000 per piece. Hence market value and the assessable value determined by the Commissioner in absence of any other data, seem to be based on the lower of the values available and could not be disputed on this account. 4.10 Commissioner has by the impugned order imposed a penalty of Rs. 1 crore on the Appellant under Section 14 AA of the Customs Act, 1962. For imposing this penalty Commissioner has in his order in para 57 of his order recorded as follows: "57. The next comes the issue of imposition of penalty upon Jetmal Bhav Singh under Section 114AA of the Customs Act, 1962. This a case of smuggling of the seized goods, which have been found to be liable to confiscation under Section 111(f) and (m) of the Customs Act, 1962 for having failed to make declaration requisite under Section 32 and Section 46 of the Customs Act, 1962. Further, consequent to the interception of the seized goods, there has been an attempt on the part of Jetmal Bhav Singh to make misstatements, misdeclaration and masking of the true and complete facts in this case, as has been found ....
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....r has imposed a penalty of Rs. 1 Crore. Applying the same yardstick as the penalty if five time the value of the goods come to Rs. 2,90,73,035/- the penalty that can be imposed will be Rs. 11,03,672/- (2,90,73,035 X 1,00,00,000/26,34,20,955 = 11,03,672.07) or say Rs. 11 Lakhs. Thus we reduce the penalty of Rs. 1 Crore imposed by the Commissioner under Section 114 AA to Rs. 11 lakhs (Rupees Eleven Lakhs). 4.11 Commissioner has in impugned order determined the duty payable in respect of these 5543 smart watches, as Rs. 9,78,715/- and imposed a penalty equivalent to the duty evaded plus interest payable on the duty evaded under section 114A of the Customs Act, 1962 on any person who comes forward to claim these goods. In our view such a n approach of the Commissioner in imposing a penalty equivalent to duty and interest under section 114 A on the claimant of goods who is yet to be identified, is totally erroneous. Section 114 A is for the cases where in respect of the goods assessed to duty, subsequently certain short payments/ non payments determined. In case where the goods are not assessed to duty at the time of clearance but subsequently held liable for confiscation in terms of....
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....nd by the CEGAT. According to the CEGAT, Para 3 of the notice relates to confiscation of goods under Section 111(o) of the Customs Act on the ground of non-submission of certificate under Condition 4(iii) of the Notification. Therefore, confiscation could be ordered only on the ground of non-submission of certificate and on no other ground. It is further pointed out by the CEGAT that Para 5 of the notice relates to payment of customs duty only, on the ground of violation of conditions relating to providing free treatment as well as on account of non- submission of certificate under condition No.4(iii) of the Notification. In connection with the above argument, it would be relevant to refer to para 7 of notice, a perusal of which would indicate that confiscation of the subject goods was intended for violation of various conditions of Notification No.64/88 dated 1.3.1988. We find, that various conditions which were violated are indicated earlier in paragraphs 3 and 5 of the notice. Para 3 contained only one condition not various conditions. We, therefore, feel that reading the notice parawise and confining it watertight within each paragraph, would not be a correct way of construing ....