TaxTMI 
TaxTMI 
2024 (4) TMI 1100
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.... also addressed to ten persons but in appeal before us are these five appellants. Hence, these five appeals have been heard together and are being disposed of through this common order. 2. By the impugned order, the Principal Commissioner absolutely confiscated 53.8 lakh cigarettes smuggled in four containers concealed in HDPE granules. He also confiscated the HDPE granules that were used to conceal the cigarettes but allowed them to be redeemed on payment of fine of Rs. 10,00,000/-. 3. In the impugned order, penalty of Rs. 15,00,000/- under section 112 (a) &(b) of the Customs Act,1962 [Act] and penalty of Rs. 20,00,000/- under section 114AA have been imposed on Ajay. 4. In the impugned order, penalty of Rs. 15,00,000/- under section 112 (a) &(b) and penalty of Rs. 20,00,000/- under section 114AA have been imposed on Parshottam. 5. In the impugned order, penalty of Rs. 15,00,000/- under section 112 (a) &(b) and penalty of Rs. 20,00,000/- under section 114AA have been imposed on Gagan. 6. In the impugned order, penalty of Rs. 5,00,000/- under section 112 (a) &(b) and penalty of Rs. 5,00,000/- under section 114AA have been imposed on M/s. Guha Sarkar. 7. In the impu....
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....lf of the appellants 11. Learned counsels for the appellants made the following submissions: (i) The seized goods which were the case property was not available for confiscation at the time of adjudication and it had been disposed of without following the procedure laid down under section 110(1B) and section 150 of the Act. In the absence of the case property, the charge of smuggling cannot be sustained. The appellant wrote a letter dated 23.8.2018 which was not replied to by the department; (ii) Thereafter, the appellant filed a Writ Petition before Delhi High Court which was dismissed as withdrawn on 23.5.022; (iii) The appellant had taken photographs of the containers in the ICD Tughlakabad which showed that the seal numbers indicated in the panchnama and the seals found in the photographs were different; (iv) The appellant requested for inspection of the containers which was denied by the adjudicating authority; (v) The appellants should be returned the market value of the goods which have been illegally disposed of by the department; (vi) The entire case is based on the retracted statements of the appellant. Shri Ajay Sa....
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.....5.2022. While seeking to withdraw, the appellant had not even sought leave of the High Court to again file a fresh petition or to plead the ground before this Tribunal or before any other Court. Therefore, this issue has attained finality; (iv) The undisputed facts of the case are that the Bill of Entry was filed for import of the goods in the name of RS Imports & Exports but the actual importers were Ajay, Parshottam and Gagan. This was not only found during investigations and recorded in their statements but this is also the assertion of the appellants in their appeals. For this reason, they are seeking return of the goods or the market value of the goods. Thus, they filed a benami Bill of Entry for import of HDPE granules; (v) In addition to the HDPE granules which were declared, 53.8 lakh cigarettes were also imported illegally concealed behind the HDPE granules. Import of the cigarettes is prohibited as they do not meet the requirement of statutory health warning as required; (vi) M/s. Guha Sarkar and Co., the CHA filed the benami Bill of Entry for Ajay, Parshottam and Gagan through its employee Sunil to whom it gave its power of attorney. Therefore....
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....t. The Commissioner has, in the impugned order, categorically recorded that they were available. We have no reason to doubt when it has not only been recorded by the Commissioner that the goods were available but the appellants have also been given an option to redeem the confiscated HDPE granules on payment of redemption fine. 18. We also note that the appellants filed WP (C ) 2525 of 2019 before the High Court of Delhi asserting that the department had illegally disposed of the seized goods (case property). Later, the appellant filed a miscellaneous application seeking to withdraw the WP which was allowed by the High Court by order dated 23.4.2022 and the WP was dismissed as withdrawn. While seeking to withdraw, the appellant had not sought leave of the High Court to file a fresh WP or raise it before any other court or Tribunal. Therefore, this issue has attained finality. It is not open to the appellant to now raise this as a ground before us. 19. Another plea of the learned counsel was that the DRI which issued the SCN was not competent to issue it in view of Canon India. We find that Canon India was a case where an assessment made by the Appraising Group of the Custom H....
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...., whichever is the greater; (ii) in the case of dutiable goods, other than prohibited goods, subject to the provisions of section 114A, to a penalty not exceeding ten per cent. of the duty sought to be evaded or five thousand rupees, whichever is higher: Provided that where such duty as determined under sub-section (8) of section 28 and the interest payable thereon under section 28AA is paid within thirty days from the date of communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent. of the penalty so determined; (iii) in the case of goods in respect of which the value stated in the entry made under this Act or in the case of baggage, in the declaration made under section 77 (in either case hereafter in this section referred to as the declared value) is higher than the value thereof, to a penalty not exceeding the difference between the declared value and the value thereof or five thousand rupees, whichever is the greater; (iv) in the case of goods falling both under clauses (i) and (iii), to a penalty not exceeding the value of ....
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....to confiscation under section 119. However, as they are not prohibited goods, the Commissioner gave an option of redemption under section 125. We find this part of the order to be fair and balanced requiring no interference. 23. Penalty under section 112 can be imposed for any action which renders the goods liable to confiscation under section 111. The cigarettes were liable to confiscation and therefore all persons whose acts or omissions rendered them liable to confiscation are liable to penalty under section 112. Ajay, Parshottam and Gagan are admittedly, and even according to the appeals filed before us, are the importers of the goods (both the cigarettes and the HDPE granules). Therefore, penalties on them under section 112 need to be upheld. The quantum of penalty imposed is also proportionate to their offence. Section 112 provides for a penalty not exceeding the value of the prohibited goods. The value of the cigarettes was Rs. 1,22, 03,500/- and the penalty imposed on Ajay, Parshottam and Gagan was Rs. 15,00,000/- each which is only about 12% of the value of the prohibited goods. Considering the gravity of the offence of smuggling such large quantity of cigarettes which ....