TaxTMI 
TaxTMI 
2023 (5) TMI 666
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....thout factual, or legal, context. 2. According to Learned Counsel, clearance of such goods is permitted without payment of either 'basic customs duty (BCD)' or of 'integrated goods and service tax (IGST)' by notification no. 45/2017- Cus dated 30th June 2017 (at serial no. 5). He also submitted that the order of Commissioner of Customs (Appeals), Mumbai Zone-III, impugned here, upheld confiscation not only by validation of invoking of section 111(i) and section 111(m) of Customs Act, 1962 on the entirety of import - that matching with, as well as in excess of, declaration in bill of entry - for breach in self-assessment and of section 46(4) of Customs Act, 1962 but also insinuated section 118 of Customs Act, 1962 that the adjudicating authority had not found to be applicable. He further intimated that their entitlement to the benefit of exemption from duties on import of the 'cut and polished diamonds' in the second box had been inappropriately denied when, in the light of their explanations, their plea for amendment of bill of entry under section 149 of Customs Act, 1962, preferred before the original authority, could easily have resolved the matter fairly and equitably. 3. Ther....
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....the remission of duty to that extent even as the entire consignment was confiscated under section 111(i) and section 111(m) of Customs Act, 1962 though permitted to be redeemed on payment of fine of Rs. 8,00,000 under section 125 of Customs Act, 1962 besides imposing penalty of Rs. 40,877 on the importer under section 112 of Customs Act, 1962 and of Rs. 5 0000 on the 'consol agent', M/s Brinks BVC, under section 117 of Customs Act, 1962 while dropping proceedings against the customs broker. 4. It is evident that, while the claim for exemption, though now restricted to one box of 311.03 carats, was not disallowed for one and was not allowed for the second box of 99.14 carats solely on the ground that the benefit could not be extended in the absence of claim for such in the bill of entry; impliedly, denial of exemption has been grounded on absence of declaration in bill of entry and concurrent claim for the benefit. There is, thus, no categorical finding of ineligibility for the exemption, accorded to 'exported goods returned subsequently', by notification no. 45/2017-Cus dated 30th June 2017 and subject to satisfaction of the 'proper officer' of the goods having been identified as ....
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.... throwback to the days before 'self-assessment' and even delegated custodianship consequent upon rescinding of Sea Customs Act, 1878. The inevitability of such inspection does not sit well with the allegation that there was deliberate misdeclaration of material particular which alone would warrant invoking of section 111(m) of Customs Act, 1962. 7. Likewise, in invoking section 111(i) of Customs Act, 1962, the adjudicating authority appears to have overlooked the 'physical control' regimen of times past that continues to rule the Bharat Diamond Bourse at Mumbai in accordance with official instructions staying the hand, and passage, of time that that had brought about devolution of obligations on importers preferring declarations under section 46 and section 50 of Customs Act, 1962. The insistence on visiting the importer with the same rigour of responsibility and onus, as pervades the customs areas outside the Bourse, is nothing short of a scathing indictment of the manner in which the 'first check' system is operated; surely, that cannot have been the intent of the lower authorities. As Learned Counsel has reiterated, time and again, the deterrence implicit in unalloyed 'first ch....
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....ame had been considered and dropped in the order appealed against. The provision, so deliberately dropped, could not have been revived in appeal within the boundaries noticed by the Hon'ble Supreme Court in the judgements supra except by an appeal of Revenue or, in specific exercise of power so granted by the statute, by reframing of the issues in appeal but only after placing the appellant before it on notice of intent to do so. Owing to this statutory enablement, and non-exercise thereof, the cited decisions would not legitimise the overreach undertaken by the first appellate authority. Therefore, the recourse to section 111(i) of Customs Act, 1962 to order confiscation of the imported goods is not tenable. 9. By the failure of the confiscation upheld in the impugned order, the consequent penalty under section 112 of Customs Act, 1962 cannot be sustained. Moreover, the findings of the original authority are replete with observations about the mistake that occurred as well as the role of the 'consol intermediary' for not reflecting the contents of the consignment despite having issued 'house airway bill (HAWB)' in acknowledgement of having assumed custodianship of the package and....