TaxTMI 
TaxTMI 
2022 (1) TMI 813
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....nce of goods declared as Food Stuff (Chocolate etc.) Cigarettes and Cosmetics supplied by M/s Viniprod International Trading LLC, Dubai. The importer has claimed the benefit of Notification No. 03/57-Cus. dated 08.01.1957 for exemption of duty on the said imported goods. It is also mentioned - Exemption Certificate No. EC/03/AW/08/2018 dated 16.08.2018, wherein Ministry of External Affairs (MEA) Endorsement No. 1158 dated 23.08.2018. During the assessment of Bill of Entry, following targeter‟s/ intervener‟s instructions were noticed as under:- "Container may be examined on 100% basis as it is likely to contain contraband. In the event of any seizure RMCC may be informed." 3. Accordingly, a letter dated 13.09.2018 was sent to the Deputy Chief of Protocol, MEA, New Delhi conveying the requirement of 100% examination of the goods in presence of Representative of the Embassy and MEA, through post and e-mail. 4. In this regard, the import docket in respect of the subject Bill of Entry was asked for from Customs Broker - Rahul Bhardwaj and the docket found to contain following documents:- (i) An invoice No. 6062 dated 14.08.2018 bearing stamp of Senegal Embassy and Exte....
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....ch as invoice, B/L, Exemption Certificate & Bill of Entry has been observed in respect of subject impugned goods. 5. A letter dated 13.09.2018, was received from the Embassy of the Republic of Senegal stating that the inspection could be conducted only in the presence of the diplomatic agent or their authorised representative citing the immunities under "the Diplomatic Relations (Vienna Convention) Act, 1972. They had also mentioned to follow the process as prescribed under Customs Circular No. 13/2007 dated 02.03.2007. However, the Customs Circular No. 13/2007 dated 02.03.2007 is about import of livestock and livestock products. The scanned copy of the letter dated 13.09.2018 was e-mailed to MEA on 13.09.2018. 6. In this regard, following communications were made with the Ministry of External Affairs to clarify the issue: (i) An e-mail dated 14.09.2018 was received from Sh. Mahesh Chand Giri, Protocol Officer (Special), MEA confirming that the Exemption Certificate dated was attested for food stuff as per quota allotted by the Ministry to the Embassy and not for Cigarettes. A scanned copy of Invoice was received in the Protocol Special Section, MEA with respect to Exemption Ce....
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....nst the declared quantity of 60 x 10 x 50. The cigarettes were not covered in the Duty Exemption Certificate issued by the MEA. (b) The item No. 1 of Bill of Entry was declared as Chocolates, food stuff etc. whereas the goods found on examination were food supplements containing whey protein and vitamins. 7.2 Thus the examination of the goods covered under Bill of Entry No. 8005732 dated 11.09.2018 revealed that the goods were mis-declared to the extent that the description of the goods i.e. food supplements were declared as chocolate & food stuff and quantity of cigarettes were also declared well below then what was actually found. Further, it also appeared that the facilities of the Notification No. 03/57 dated 08.01.1957 read with Foreign Privileged Persons (Regulation of Customs Privileges) Rules, 1957, regarding exemption from duty and examination of goods imported by Embassy for personal use/ consumption were attempted to be claimed by mis-declaring the facts. 8. Since the cigarettes of Gudang Garam brand and whey protein and other food supplements were found mis-declared in terms of description as well as quantity and this contravention involved Sh. Andre Waly Se....
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.....12.2018 on the-reasonable belief that same were liable for confiscation under Section 111 of the Act. The valuation of the cigarettes of Gudang Garam was taken as Rs. 1200/ per danda as per value adopted by the Customs from IGI Airport, New Delhi vide D.R. No. 3549 dated 11.08.2018 in cigarettes at Rs. 72,00,000/- (120x50x1200), respect of Gudang Garam cigarettes. Thereby, making the value of the cigarettes at Rs. 72,00,000/- (120 x 50 x1200). 13. Thereafter, samples of food items drawn from the impugned consignment imported by the Embassy of Senegal were forwarded to Shri Vijay Kumar Teotia, Regional Officer, AQCS, Kapashera, New Delhi vide letter C. No. VIII(B)40/ICD-GH/BE No. 8005732/632/18-19/2272 dated 12.12.2018 for testing to obtain the NOC for clearance of the goods. Subsequently, the Regional officer vide their letter F. NO. 4-24/18-19/AQCS(ND)/4168 dated 13.12.2018 submitted their findings such as "the above consignment is not fulfilling the import health guidelines & requirement under the schedule of the Notification No. S.O. 2666(E) dated 16.10.2014. The health status of the consignment is doubtful as imported without official health certificate mentioning the heal....
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....dment Rules, 2017 and the Legal Metrology Act. Therefore, those Gudang Garam brand Cigarettes have been put under seizure under Section 110 of the Customs Act, 1962 on the reasonable belief that same were liable for confiscation under Section 111 of the Act. The AQCS in respect of food supplements and food stuff imported by the Embassy of Senegal had submitted that food supplements and other food stuff could not be cleared from the animal quarantine angle to enter into India. Hence, directed that the said food stuff/ supplements either to be deported or destructed. It appeared that the Gudang Garam Cigarettes were found to be not conforming Cigarettes and other Tobacco Products Act (COTPA) regulations and the food stuff and food supplements were not allowed by the AQCS for importation into India, which was in violation of Livestock Importation Act, 1898. It appeared that the DGFT Para 2.08 of the FTP 2015-2020 governs the Export/Import of Restricted goods/Services, which says that "Any goods / service, the export or import of which is 'Restricted' may be exported or imported only in accordance with an Authorization/Permission or in accordance with the procedure prescribed i....
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....No.8005732 dated 11.09.2018 and also some of the items mis-declared in terms of description and quantity. By their act of willful suppression of facts by filing incorrect description, and value of the imported goods leading to mis- declaration of description and value of the goods in the subject Bill of Entry, Sh. Andre Waly Sedar Sarr, the importer thereby rendered the impugned goods liable for confiscation under Section 111 (m) of the Customs Act, 1962. Also, Sh. Andre Waly Sedar Sarr, the importer intentionally declaring incorrect description and value of the goods along with non-declaration of several items in the Bill of Entry No. 8005732 dated 11.09.2018 have suppressed information from the Customs authorities with the sole intent to evade applicable Customs duty and thereby rendered himself liable for penal action under Section 112 (a) of the Customs Act, 1962. Besides Sh. Andre Waly Sedar Sarr also got was sued the subject Exemption Certificate on the basis of an invoice, wherein only name Gudang Garam was mentioned and concealing the description of the goods i.e. Cigarettes. This act of his also corroborate illicit intents of Sh. Andre Waly Sedar Sarr to evade the applicab....
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....e time being in force in India for import/ export, and documents submitted are true, complete and correct in all manner and nothing has been concealed or attempted to be concealed ." Further, the appellant stated that Embassy Officer was aware about the entitlement to import under the exemption certificate for which also the importer had filed a self certification on 18.08.2018 declaring therein that he was fully aware of the customs provisions, wherein he inter-alia declared that - "(1) I am aware that under the Customs Act, 1962 and Notification of the Government of India, there are prohibitions on importation and exportation of specified goods. (2) I am also aware that import and export of some specified goods may be restricted/ prohibited under other laws such as Foreign Trade (Development & Regulation) Act, Foreign Trade Policy, Environment Protection Act, Wild Life Act, Livestock Importation Act, The Foreign Exchange Management Act, The Trade Marks Act, Arms Act, Drugs and Cosmetic Act etc. Prohibitions under those Acts will be treated as prohibitions under the penal provisions of customs Act rendering such goods liable to confiscation under section 111(d) of Customs Act ....
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.... appellant. Learned Commissioner (Appeals) have recorded the following findings and allowed the appeal setting aside both the penalties under Section 114AA and 117 of the Customs Act, 1962 with consequential relief- "5.3 I find from the facts that the importer being First Secretary in Embassy of Senegal fell in the category of privileged person and was entitled to import goods for his personal use under Notification No. 03/57-Cus dt. 08.01.1957. The importer was holding a valid Exemption Certificate which referred to Invoice No. 6062 dt. 14.08.2018 and B/L No. 03700205/0007084/19 dt. 14.08.2018. The invoice mentioned various items which included GUDANG GARAM (60*10), QTY -50. In fact, with his personal knowledge, the appellant correctly declared them as CIGARETTES. As per exemption notification No. 3/57-Customs, all goods are allowed to be imported by diplomat duty free for personal use and there is no exclusion for cigarettes. The fact that the exemption certificate did not cover cigarettes was informed by MEA only on 14.09.2018 on specific query from the Department and the appellant had no means to know the cigarettes were not covered by the said exemption certificate. In fact,....