TaxTMI 
TaxTMI 
2022 (9) TMI 1131
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....eclaring an RSP and accordingly, goods were assessed by the customs officers and cleared. Thereafter, on receiving intelligence, officers of Directorate of Revenue Intelligence [DRI] searched the warehouse of the importer and found loose labels which indicated much higher prices than those declared in the Customs documents and also found price lists indicating higher prices in the warehouse. Officers of DRI investigated the matter further and recorded statements of Shri P K Sood the Director of the importer on 1.03.2005, 22.03.2005, 09.05.2005, 05.05.2005 and 25.05.2005 and Shri S K Kohli, Manager on 21.02.2005 under Section 108 of the Customs Act, 1962 [Act] in which they confessed that the labels reflected the true RSP and lower prices were declared in the Customs documents to evade duty. Both had subsequently retracted their statements. The goods were seized by the officers of DRI and handed over to the importer under a Supurdnama for safe custody. Later, these were returned to the department. 4. A Show Cause Notice [SCN] dated 19.08.2005 was issued by the Additional Director General of DRI proposing to reject the declared RSP and reassess the Additional Duty of Customs on the ....
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....t redeemed the goods. Since the goods have not been redeemed, the question of recovering duty or differential duty on the confiscated goods does not arise. 7. According to learned counsel duty has to be paid as per sub- section (2) of section 125 in addition to the redemption fine only if this option is exercised. Otherwise, the confiscated goods vest in the Central Government as per section 126 and consequently, any charge of duty on the goods shall also vest in the Central Government and not on the importer. He relies on the following case laws: (i) M/s B S N Joshi & Sons Limited vs. Nair Coal Services Limited [(2006) 11 SCC 548] (ii) Commissioner of Customs (Prev), Mumbai vs. Swastik Optical Co Pvt Ltd. [Appeal No. C/689/04 dated 20.08.2015] (iii) Hindustan Appliances vs. Commissioner of C. Ex. New Delhi [2002 SCC Online CEGAT 1736] (iv) Venus Stampings Pvt Ltd. vs. Commissioner of Central Excise Delhi IV [2022 (379) ELT 274 (SC)] (v) Northern Plastics vs. Commissioner of Central Excise [(1998) 6 SCC 443] (vi) Perfect Trading Company vs. Commissioner of Customs, New Delhi [2001 SCC Online CEGAT 413] (vii) Union of India vs. Kisan Ratan Singh [2020 SCC Online....
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.... no difference. The importer had declared a certain RSP before the Customs when, in fact, the RSP as found in the labels and the price lists recovered from the warehouse of the importer itself were much higher. When questioned, Shri P K Sood and Shri S K Kohli have both admitted that the price lists and the labels reflected the true prices. Therefore, rejection of the declared RSP and redetermination of duty as per the labels and the price lists and order of recovery of differential duty are correct and do not call for any interference. As far as the retractions of the statements are concerned, he submits that they were afterthoughts and do not explain the labels and price lists actually found. 13. He further submits that as the impugned goods did not correspond to the actual value (RSP), they were correctly confiscated under section 111(d) & 111(m) and were allowed to be redeemed on payment of fine which the importer had not opted for. Consequently, the penalties were correctly imposed. 14. We have considered the submissions on both sides and perused the records. The questions which we need to answer in this case are: a) If the goods are confiscated and allowed to be redeemed ....
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....option given thereunder, such option shall become void, unless an appeal against such order is pending. Explanation.-For removal of doubts, it is hereby declared that in cases where an order under sub-section (1) has been passed before the date on which the Finance Bill, 2018 receives the assent of the President and no appeal is pending against such order as on that date, the option under said sub-section may be exercised within a period of one hundred and twenty days from the date on which such assent is received. 126. On confiscation, property to vest in Central Government.-(1) When any goods are confiscated under this Act, such goods shall thereupon vest in the Central Government. (2) The officer adjudging confiscation shall take and hold possession of the confiscated goods." 16. The charge of duty of customs is on the goods imported into India as per Section 12 and NOT on the person who imported the goods. This section further lays down that this charge will apply to goods owned by the Government as they apply to other goods. Section 12 reads as follows: " Section 12. Dutiable goods. - (1) Except as otherwise provided in this Act, or any other law for the time being ....
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....y from the importer. The importer need not pay the duty. Section 48 reads as follows: " Section 48. Procedure in case of goods not cleared, warehoused, or transhipped within thirty days after unloading. - If any goods brought into India from a place outside India are not cleared for home consumption or warehoused or transhipped within thirty days from the date of the unloading thereof at a customs station or within such further time as the proper officer may allow or if the title to any imported goods is relinquished, such goods may, after notice to the importer and with the permission of the proper officer be sold by the person having the custody thereof: Provided that - (a) animals, perishable goods and hazardous goods, may, with the permission of the proper officer, be sold at any time; (b) arms and ammunition may be sold at such time and place and in such manner as the Central Government may direct. Explanation. - In this section, "arms" and "ammunition" have the meanings respectively assigned to them in the Arms Act, 1959 (54 of 1959)." 18. The Central Board of Excise and Customs instructions on disposal of unclaimed or un-cleared cargo are contained in paragraph ....
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....inquishes his title to the goods before clearance under section 28(2), he has no liability to pay duty. If the importer does not clear the goods and for that reason the goods are sold by the custodian under section 48, the duty is to be recovered from the sale proceeds as per section 150 and not from the importer. This has also been made clear by the Board in the Customs Manual. Similarly, if the goods are confiscated absolutely or the option of redemption has not been exercised by the importer, in terms of section 150, such goods must be sold and the duty has to be recovered from the sale proceeds. Thus, goods which are confiscated and which are not allowed to be redeemed or which have not been redeemed vest in the Central Government and the officer adjudicating the case has to take their possession. It has been held by the Supreme Court in Fortis Hospital Limited vs. Commissioner of Customs, Import [2015 (318)ELT 551 (SC)] as follows: "14. Notwithstanding the aforesaid position, as pointed out above, the Department is taking shelter under the provisions of sub-section (2) of Section 125 of the Act. However, on a plain reading of the said provision, we are of the view that such ....
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....ation of the goods and imposition of penalties are sustainable. These issues are inter-linked and all stem from the premise that the RSP was mis-declared in the Bills of Entry. The basis for this finding in the impugned order that the RSP was mis- declared are as follows: a) Loose labels found in the warehouse; b) Price list found in the warehouse; and c) Statements of Shri P K Sood and Shri S K Kohli made before the officers under Section 108 of the Act. 22. The statements were retracted later. Section 138B of the Act explains the relevance of any statements made before officers of Customs under the Act. It reads as follows: " Section 138B. Relevancy of statements under certain circumstances. - (1) A statement made and signed by a person before any gazetted officer of customs during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains, - (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained with....