TaxTMI 
TaxTMI 
2020 (11) TMI 590
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.... 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 with Rule 3 of the Information Technology Goods (Requirements for Compu....
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....bile 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(s), who come forward to make a claim to these seized goods, under Section 114A of the Customs Act, 1962; 14. I impose a penalty of R....
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.... 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 Stick Kit (Alien) 85437099 8 36000 9985 15 Mobile Phone Back Covers 39231023 4370 279680 117689 Total 52684191 22162347 2.2 Appellant was examined and his statement recorded under Section 108 of the Customs Act, 1962 on 05.04.2018, 19.06.2018 and 14.09.2018. 2.3 Appellant had vide letter dated 25.05.2018 from M....
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....(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 the impugned order referred in para 1, supra. 2.7 Aggrieved by the impugned order appellant have preferred this appeal. 3.1 We have heard Shri Anil Balani Advocate for the Appellant and Shri K K Srivastava, Additional Commissioner, Authorized Representative for the revenue. 3.2 Arguing for the Appellant, learned counsel submitted that: ➢ He is in appeal only for the confiscation of 5543 smart....
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.... 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 completely false, baseless and unsubstantiated. The advocate's letter dated 25.05.2018 was never rebutted. Bipin of Sun Cargo also stated that only 10 cartons belonged to the Appellant. Hence, the penalty under Section 114AA is not sustainable and strictures must be passed against the department. ➢ It is significant to note that, although the goods were detained on 5.04.2018, they were officially seized only on 12.09.2018 as recorded in Para 12 of the SCN. ➢ The objection regarding IMEI No. and BIS shoul....
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....d 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 considered the impugned order along with the submissions made in the appeal and during the course of argument of the appeal. 4.2 While considering the facts of this case as have been narrated in para 2.1 to para 2.3 above we find striking similarity in the facts of the present case and the facts as recorded by the Apex Court in the case of D Bhoormal {1983 (13) ELT 1546 (SC)]. The facts as recorded in the case of Bhoormal are reproduced below:- "On receiving information that some packages containing smuggled goods had been left by a person in the premises of M/s. Sha Rupaji Rikhabdas at 98, Narayana Mudali ....
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....l 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 letter, the Collector made an attempt to contact Bhoormull for further investigation. Bhoormull, however, could not be contacted as he had gone away to Poona which was said to be his normal place of activity. Another letter, dated June 25, 1962, was received by the Collector from Bhoormull urging for release of his goods at an early date. On July 3, 1962, a letter was received by the Collector from M/s. Gagrat & Co., Solicitors, Bombay on behalf of Bhoormull, requesting for disclosure of the grounds for the seizure of the goods, and for supply of the copies of the Mahazarnama and other relevant documents relating to the seizure. It was reiterated that the goods had been bo....
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...., 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 and had in fact been sold by the Customs Department at Madras and elsewhere and as such were being freely bought and sold in the market. A date was fixed by the Collector for personal hearing of Bhoormull. But he did not personally appear. However, on August 1, 1963, Shri J. R. Gagrat, of M/s Gagrat & Co. appeared before the Collector with a representative of Bhoormull, and contended that unless the Department had any other indication, it would not be necessary for Bhoormull to establish ownership of the goods; that there were no purchase vouchers; nor was he in a position to produce the broker who was supposed to have left the goods near the shop of Baboothmull. While conceding that the burden of proving the go....
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....he 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 concerned in any such offence shall be liable to a penalty not exceeding three times of the value of the goods, or not, exceeding 1000/- rupees." Section 171-A specifically empowers the Customs Officers employed in the prevention of smuggling to summon any person whose attendance be considers necessary either to give evidence or to produce a document or thing in an enquiry in connection with the smuggling of any goods and such person shall be bound to state the truth and produce that document or thing and would be liable to prosecution if he made a false statement. A reading of s. 167(8) and the related provisions indicates that proceedings for confiscation of contraband goods are proceedings in rem and the penalty of confiscation under the first part of the entry in col....
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....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 goods, the burden of proof that they are not such goods shall be on the person from whose possession, they are seized. But with regard to any other goods, the rule in sub- section (1) of Section 178-A would not apply unless the Central Government had specifically applied the same by notification in the Official Gazette. It is common ground that at the material time, no such notification applying the section to the categories of the goods in question had been issued. In respect of such goods the provisions of the Evidence Act and the Code, of Criminal Procedure, do not, in terms, govern the onus of proof in proceeding under s. 167(8) of the Act. In conducting these penal proceedings, therefore, the Collector of Customs is to be guided by the basic canons of criminal jurisprudence and natural justice. With the above....
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....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 adequacy of that evidence, and act as if it was a court of appeal. Mr. Ramamurthi, learned Counsel for the Respondent, contends in. reply, that all proceedings were conducted by the Collector on the assumption that Bhoormull was the claimant or the supposed owner of the goods,;, that at no stage, before the High Court an, objection was taken that he had no, locus standi to maintain the writ petition, because he had no interest in the confiscated goods and consequently, this objection should not be entertained for the first time in this Court. Learned Counsel further submits that proceedings of confiscation being penal in nature, the burden was on the Department to show by cogent and convincing evidence that the goods had been illicitly imported into India and that no part of this burden could be shifted to the person claiming the goods. It is empha....
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.... 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 to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlyings. 106, Evidence Act, the burden to establish those facts is cast on, the person concerned; and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or: the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. As pointed out by Best in 'Law of Evidence', (12th Edn. Article 320, page 291),. the ".Presumption of innocence is, no doubt, presumption juris, but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property", though the latter ....
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....oods, 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 from whose apparent custody or physical possession, they were seized disclaimed not only their ownership but also all knowledge about the contents of the packages. He could not give a satisfactory account as to how those packages came into his shop. 'At first, he said that some next-door unknown broker had left them outside his shop. Some days later, he came out with another version viz., that one Bhoormull had left them there. Eight ,days after, one mysterious person who gave out his name as Bhoormull, laid claim to these goods. Despite repeated requisitions, Bhoormull did not furnish any information regarding the source of the alleged acquisition of the goods. He never appeared personally before the Collector. He remained behind the scenes. He did not give addresses or sufficient particulars of the brokers who had allegedly sold the goods to him on the 3rd June. Whatever cryptic in....
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....nstitution 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 was advanced before this Court in appeal by special leave. This Court also negatived this contention. While conceding that there was no direct evidence that the gold had been smuggled after March 1947, it was held that a finding to that effect could be reached by referring to "the conduct of the appellant in connection with (a) the credibility of the story about the purchase of this gold from three parties, (b) the price at which the gold was stated to have been purchased which was less than the market price and (c) the hurry ,exhibited in trying to get the gold melted at the refinery with a small bit of silver added,' so as reduce, the fineness of, the, gold and thus approximate the resultant product to licit gold found in the market." The rule in Issardas Daulat Ram's case was reiterated with amplification in M/s. Kanungo & Co.'r case (supra). Therein, the appellant was ....
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....at 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 falsifying in many particulars the story put forward by the appellant.............. It cannot be disputed that a false denial could be relied on by the Customs Authorities for the purpose of coming to the conclusion that the goods had been illegally imported." In the case before us, the circumstantial evidence suggesting the inference that the goods were illicitly imported into India, was similar and reasonably pointed towards the conclusion drawn by the Collector. There was no violation of the rules of natural justice. The Collector had given the fullest opportunity to Bhoormull to establish the alleged acquisition of the goods in the normal course of business. In doing so, he was not throwing the burden of proving what the Department had to establish, on Bhoormull. He was simply giving him a fair opportunity of rebutting the first and the foremost presumption that arose out of the tell-tale cir....
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....d 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 those stolen goods knowing them to be stolen. If his possession was innocent and lacked the requisite incriminating knowledge, then it will be for him to explain or establish those facts within his peculiar knowledge, failing which the prosecution will be entitled to take advantage of the presumption of fact arising against him, in discharging its burden of proof. These fundamental principles, shorn of technicalities, as we have discussed earlier, apply only in a broad and pragmatic way to proceedings under s. 167(8) of the Act. The broad effect of the application of the basic principle underlying s. 106 Evidence Act to cases under s. 167(8) of the Act, is that the Department would be deemed. to have discharged its burden if it adduces only so much evidence, circumstantial or direct, as is sufficient to raise a presumption in its favour with regard to the existence of the facts sought to be proved. .Amba Lal's case w....
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.... 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, radio transceiver, electronic watch module, motion sensor(accelerometer) agyro-sensor, digital camera module with auto focus, speaker and two microphones. The radio transceiver utilizes the open wireless technology standard (Bluetooth), which enables the device to communicate wirelessly with certain mobile devices, such as mobile phones for cellular networks or tablet computers. The device independently performs functions such as recording and reproducing sound, taking and recording photos and videos, measuring and displaying step counts and heart rates apart from displaying time and information embedded in the watch module. Further, as per Notification No.57/2017-Cus. dated 30.6.2017 (copy attached) Smart Watches are classified under CTH 85176290/85176990. ➢ The SCN and the impugned Order are misconceived and void ab-initio because they proceed on the fallacious assumption that "smart watches" are covered by the term "watches". Watches are classified under CTH 9101. Smart Watches a....
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....eizure 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, appellant failed to establish the same. The relevant extracts from the statements of Appellant recorded under Section 108 are reproduced below: Statement dated 19.06.2018 "Q. Please go through your statement recorded on 5 April, 2018. Ans. I have gone through the statement recorded on 5th April, 2018 and placed my dated signature of having seen and confirmed the same. Q. In your statement you have claimed the ownership of 10 cartons containing Smart Watches & 07 cartons containing duplicate copy of branded watches, what you have to say? Ans. I have gone through the statement given by me on 5th April, 2018. I have found that I had claimed 17 cartons out of 23 cartons. On that day, I did not have any documents. However, I have approached my CHA and I am producing following documents relating to my goods which had been imported by me under IEC Code 0316967190 issued to my Company Jstar Mobile Accessories Private Limited: i. Bill of Entry number 3140294 dated 07.09.2018 for the import of smart watches ii. Customs exa....
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....ent made to the foreign party is reflected in the Bank statement iv. I have already submitted the import related documents as quoted above. v. I have stored my smart watches with my friend Shri Shiva. Earlier I used to visit him and used to sell the goods to some of the parties who operate in Chennai or used to bring to Mumbai via train. However, this time, I could not go due to my family problem, he had transported this balance 5,500 smart watches through Sun Cargo via train. vi. I have no documents in relation to the transportation of the 20,000 smart watches. I submit that some part of the consignment was sold to the entity situated at Chennai. Also, I had made personally visited Chennai and bring the smart watches on train. For that, I used to contact the contractor available at Chennai Railway station who charges at the rate of Rs. 15 per kg for the parcel. I use to travel in the same train and collect the smart watches at CST railway station and further transported the smart watches by tempo standing outside CST. I could not visit Chennai this time as I had some family problem. I call my brother to arrange the transportation of the same. I shall provide you the ledger c....
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....as per the contract entered the company. As he is no more in my company and I am in problem, he is not answering my call." Statement dated 14.09.2018 "Q. Please go through the statement dated 05.04.2018 of Shri Kishore Malusare, Driver of Tempo bearing registration number MH-04-FP-7421 recorded u/s 108 of Customs Act, 1962. What you have to say? Ans. I have gone through the statement dated 05.04.2018 of Shri Kishore Malusare and placed my dated signature of having seen and understanding the same. I state that Shri Kishore Malusare was the driver of the tempo on which my goods were loaded. Q. Shri Kishore Malusare, driver of the said tempo has deposed that all the goods contained in the said tempo belong to you and you were accompanying him as owner of the goods. What you have to say? Ans. I agree that I was accompanying him in the said tempo but I claimed only the smart watch which is contained in 10 cartons. Q. Please go through your statement dated 05.04.2018 & 19.06.2018. What you have to say? Ans. I have gone through the statement dated 05.04.2018 & 19.06.2018 and I have placed my dated signature of having seen and deposed by me on the respective dates. I find that....
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....her smart watches available at approximately same cost do not bear any mark/ logo or sign on the body of the smart watches. Hence, I cannot co-relate the DZ09 smart watches imported under Bill of Entry no. 3140294 dated 07.09.2017 with 5543 smart watches detained by this office. But these smart watches have unique IMEI number on the basis of which we can differentiate between two smart watches of different model. Q. Please go through commercial invoice produced by your Authorized representative. What you have to say? Ans. I have gone through the Commercial invoice produced by me. I have to say that the commercial invoice only give details the total number of smart watches imported by my company i.e. Jstar Mobile Accessories Pvt. Ltd.. There is no detail of IMEI number on the basis of which I can say that the commercial invoice issued pertains to the 5543 smart watches detained by your office. Q. Please go through the Customs Duty payment details produced by you. What you have to say? Ans. I have gone through the extract of payment details as available in the ICEGATE. As the commercial invoice does not give details of IMEI number of 20,000 smart watches, I cannot substantiat....
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....stablish your claim that the smart watches have indeed been transported from Chennai to Mumbai via train? Ans. No. I don't have any proof to claim that the goods have been transported via train from Chennai to Mumbai. Also, I don't have any receipt of booking by the representative of Sun Cargo at Chennai railway station and also from Shri Bipin, Manager of M/s Sun Cargo at CST, Mumbai. Q. As the smart watches detained by this office has a good value. How you would have claimed in case of theft or any other mishaps during the transportation? Ans. I have earlier transported goods from Chennai to Mumbai with the help of M/s Sun Cargo. There is mutual faith between us. Q. Do you have any proof of transportation made by your firm on earlier occasion? Ans. No. I have paid them in cash. I don't maintain record of the same. Q. As per the Sales ledger produced by you for the "Smart Watch" it is seen that you have left with 5656 smart watches. Do you have any details of IMEI number of those 5543 smart watches? Ans. No. Q. Can you co relate the 5543 smart watches detained by this office in any other mean with 20000 smart watches imported under Bill of Entry no. 314....
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....igh Court had dismissed the writ petition. In that context, it was held that his retracted confession within six days from the date of the confession was not before a Police Officer. The Custom Officers are not police officers. Therefore, it was held that "the confession, though retracted, is an admission and binds the petitioner. So there is no need to call Panch witnesses for examination and cross-examination by the petitioner". As noted, the object of the Act is to prevent large-scale smuggling of precious metals and other dutiable goods and to facilitate detection and confiscation of smuggled goods into, or out of the country. The contraventions and offences under the Act are committed in an organised manner under absolute secrecy. They are white-collar crimes upsetting the economy of the country. Detection and confiscation of the smuggled goods are aimed to check the escapement and avoidance of customs duty and to prevent perpetration thereof. In an appropriate case when the authority thought it expedient to have the contraveners prosecuted under Section 135 etc., a separate procedure of filing a complaint has been provided under the Act. By necessary implication, resort to th....
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....rap. Thus, import of these watches is not wholly prohibited; but is subject to the prescribed conformity and registration in terms of Rule 3 of the Order. In view thereof, I extend an option to such future claimant(s) of these smart watches to redeem them upon payment of a fine to be determined under Section 125(1) of the Customs Act, 1962. The present market value of these 5543 smart watches have been ascertained to be Rs. 58,14,607/-. The evaded amounts of chargeable and payable customs duty on these watches have been ascertained to be Rs. 9,78,715/-. The difference thereof would be Rs. 48,35,892/-. In view thereof, I determine the redemption fine to Be Rs. 45,00,000/- under Section 125(1) of the Customs Act, 1962. The person(s), who come forward to claim these smart watches are, thus, extended an option to redeem these seized smuggled 5543 smart watches upon payment of a redemption fine of Rs. 45,00,000/- and upon fulfilling the prescription stated in Rule 3 of the Information Technology Goods (Requirements for Compulsory Registration) Order, 2012. They would, in addition, be also liable to pay the ascertained customs duty liability of Rs. 9,78,715/- in terms of Section 125(2) t....
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....l manner, as propounded by Rule 3(4) thereof. Rule 4 and Rule 5 thereof would not apply in the absence of any contemporaneous data. The deductive method of determining valuation of the seized goods under Rule 7 would also not apply for the same reason. Even computed value under Rule 8 would not be ascertainable in the absence of the cost data. In the circumstances, the value of the seized goods would be determinable under the residual method by determining them using reasonable means under Rule 9 thereof. 46. The ascertainment of the value of the seized goods have been undertaken in the subject notice. ........ The values of 5543 smart watches, 16 e cigarettes, i.e., 8 V8 Stick Kit (Smok) and 8 V8 Stick Kit (Alien), and 4370 mobile back covers have been ascertained by ascertaining their market values from the e commerce platforms and then taking 40% values thereof to ascertain the transaction values. ..." Appellants have stressed that these smart watches namely DZ09, are available at much cheaper price on certain websites, namely Flipkart. For ascertaining the correctness of the claim made by the appellants we have seen price range of these smart watches, on amazon.in, and found....
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....nsidering the facts and circumstances of the case, I impose a penalty of Rs. 1,00,00,000/- upon Jetmal Bhav Singh under section 114AA of the Customs Act, 1962." Commissioner has himself in his order recorded and held that none has come forward claiming the ownership of the seized/ confiscated goods. He has himself held that the appellant is not the owner of these goods and the facts as narrated in the order, clearly establish, that appellants had not produced any documents in respect of any goods other than 5543 smart watches. Section 114 AA of the Customs Act, 1962 reads as follows: "SECTION 114AA. Penalty for use of false and incorrect material. - If a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular, in the transaction of any business for the purposes of this Act, shall be liable to a penalty not exceeding five times the value of goods." If the Appellant is not even claiming ownership of any other goods and has not produced any documents in respect of any goods other than these 5543 smart watches at any time, the logic for taking market v....
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....tion (2) of Section 125, the person shall in addition be liable to any duty and charges payable in respect of such goods. A reading of Sub-section (1) and (2) of Section 125 together makes it clear that liability to pay duty arises under Sub-section (2) in addition to the fine under Sub-section(1). Therefore, where an order is passed for payment of customs duty along with an order of imposition of fine in lieu of confiscation of goods, it shall only be referable to Sub-section (2) of Section 125 of the Customs Act. It would not attract Section 28(1) of the Customs Act which covers the cases of duty not levied, short levied or erroneously refunded etc.. The order for payment of duty under Section 125 (2) would be an integral part of proceedings relating to confiscation and consequential orders thereon, on the ground as in this case that the importer had violated the conditions of notification subject to which exemption of goods was granted, without attracting the provisions of Section 28(1) of the Customs Act. A reference may beneficially be made to a decision of this Court reported in Mohan Meakins Ltd. Versus Commissioner of Central Excise, Kochi (2000) 1 S.C.C. 462 wherein it has....