TaxTMI 
TaxTMI 
TaxTMI 
2025 (12) TMI 1407
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....31.12.2010 passed by Commissioner (Preventive), New Delhi Rs. 1,00,000/- under section 114AA of the Act C/390/2011 Shri Ashok Kumar Singhal, partner of Ace EXIM Order dated 31.12.2010 passed by Commissioner (Preventive), New Delhi Rs. 1,00,000/- under section 112(b) of the Act 2. Thus, Customs Appeal No. 386/2011 assails the order dated 29.11.2010 and the other three appeals assail the order dated 31.12.2010. These appeals were earlier disposed of by this Tribunal by way of remand to the Commissioner. Revenue assailed the Tribunal's order and the High Court passed order dated 18.12.2018 remitting the matter to this Tribunal to decide on merits. Thereafter, the matter could not be taken up because the question of jurisdiction of officers to issue SCN was pending in the review petition before the Supreme Court in Commissioner of Customs versus Canon India Pvt. Ltd.- 2024 (390) E.L.T. 545 (S.C.) 3. After the Supreme Court's judgment, these appeals were listed on several dates but the appellants did not appear. On 18 November 2024, the appeals were directed to be listed on 3 February 2025 as a last opportunity making it clear that no adjournment shall be granted to....
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....le phones, confiscating the cash recovered from M/s.ACE Exim and imposing penalties on the appellant and M/s. ACE Exim. Penalty of Rs. 2,00,000/- was imposed on the appellant (M/s. Vinayak Enterprises) under section 112(a) (i). The appellant was the importer of the mobile phones which were then seized in the premises of ACE Exim. The findings of the Commissioner in the impugned order against the appellant are as follows: "30. In this regard it is noticed that at the time of seizure the boxes of mobile phones were not carrying the MRP/RSP stickers as required under section 4A of Central Excise Act, 1944. However, it has been asserted by Shri Saurabh Sangar, in his reply dated 08.07.10, that MRP stickers were fixed at the goods imported by them. If this claim of Shri Saurabh Sangar is taken on face value, then in the given circumstances, the only conclusion which can be arrived at, is that either the MRP stickers were removed subsequently or the consignment of the seized mobile phones is other than that which was claimed to have been imported by him (Sh. Saurabh Sangar). But the latter possibility is excluded by the fact that the goods (mobile phones) contain unique identifi....
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....I numbers as the ban on import was introduced from 14.10.2009 by DGFT's Notification No. 112 (RE-2008)/2004-2009, the period was later extended till 30.11.2009. (iv) The value of Rs. 1500/- per mobile phone was wrongly reckoned because the Chinese manufacturers are given many concessions and incentives by their government. So, the price should have been considered as Rs. 450/- only. (v) The impugned order may be set aside and the appeal may be allowed. 9. Learned authorized representative of the Revenue vehemently supported the impugned order and asserted that it calls for no interference. Findings 10. Having considered the impugned order, the grounds of appeal and the submissions made by the learned authorized representative, we find that the impugned order held that the mobile phones were smuggled and hence were confiscated. During investigation, the appellant had claimed (as they did in this appeal before us), that they were legally imported through Air Cargo Complex, Jaipur, had submitted by Bill of Entry no. 002694 dated 26.9.2009 and Invoice No. AIL/2009/764 dated 22.9.2009. However, on verification by the Jaipur Customs, it was found that the invoi....
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....stoms Appeals No. 387/2011, 388/2011 and 390/2011 14. This order is impugned by: (a) M/s. Vinayak Enterprises (Appeal No. 387/2011) to assail the penalty of Rs. 2,00,000/- imposed on him under section 114A of the Act; (b) Shri Saurabh Sangar (Appeal No. 388/2011) to assail the penalty of Rs. 1,00,000/- imposed on him under section 114AA of the Act; and (c) Shri Ashok Kumar Singhal, Partner of ACE Exim (Appeal No.390/2011) to assail the penalty of Rs. 1,00,000/- imposed on him under section 112(b) of the Act. 15. The facts which led to the issue of the order impugned in these three appeals are that officers of the Customs Preventive Commissionerate, acting on specific information searched the premises of M/s. ACE Exim, Karol Bagh, New Delhi and recovered Chinese mobile phones without MRP/RSP stickers on the boxes. While the foreign origin of the mobile phones was evident and is not disputed, Shri Sandeep Aggarwal, who was present in the shop at that time could not produce any documents to show that they were legally imported. In all there were 166 cartons with 8410 mobile phones which were seized under section 110 of the Act on the belief that they w....
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....ave been imported through Jaipur Airport were compared with the invoices submitted along with the invoices submitted along with the Bill of Entry were compared and they did not match. It was found that the mobile phones imported under that Bill of Entry were different. Further, of these, 1012 mobile phones had not valid IMEI No. which was a mandatory requirement for import. 23. Accordingly a Show Cause notice was issued and after considering the submissions, the Commissioner passed the impugned order. The findings of the Commissioner in the impugned order are as follows: "I have carefully gone through the records of the case as well as the submissions made by the noticees. 34. Main allegation in this show cause notice is that the seized subject mobile phones have been smuggled into the country in violation of various restriction/ prohibition imposed on the import thereof and are thus liable to confiscation. But it has been claimed by Shri Ashok Kumar Singhal, Partner, M/s ACE Exim and Shri Saurabh Sengar Prop. of M/s Vinayak Enterprises that the subject mobile phones were imported through Air Cargo Complex, Jaipur and copies of Bill of Entry No. 002694 dated 26....
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....he import thereof. Out of these 3898 pieces, 1012 mobile phones even do not have valid IMEI nos. It is also apparent that the goods were imported in clear violation of the stipulation of affixing the MRP/RSP stickers under para-5 to General Notes regarding Import Policy {Chapter 1-A of the FTP-ITC (HS) Classification - 2004-09 and also under section 4A of the Central Excise Act, 1944. The Hon'ble Supreme Court in the case of Om Prakash Bhatia has held that if the conditions prescribed for import or export of goods are not complied with, it may amount to prohibited good. Further as per section 111 (d) of the Customs Act, 1962 any goods which are imported contrary to any prohibition imposed by or under this Act or any other law for the time being in force shall be liable to confiscation. In view of the forgoing, the subject 3898 seized mobile phones are clearly liable for confiscation under section 111 (d) of the act ibid. Since the goods have admittedly been imported/supplied by M/s Vinayak Enterprises, noticee No. 2, by their above acts of omission and commission they have also rendered themselves liable to penalty under section 114AA of the Customs Act, 1962. Further Shri Ashok Ku....
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....tention is patently unfounded as Panchnama is drawn on reasonable belief at the time of incidence i.e. at the time of seizure, whereas show cause notice is issued on the basis of facts/conclusions arrived at after the investigation. Thus, this contention of the noticee is not valid and is rejected. 39. It has further been claimed that the department has taken/held the value of single piece of imported mobile phone at Rs. 1500/- which is wrong and arbitrary and the basis of the valuation has also not been disclosed. It has also been contended that the amount of Rs. 11,00,000/- seized from the premises of M/s ACE Exim, belonged to the firm and was the business ongoing cash and thus not liable for confiscation. 40. In this regard I find that, both these issues are not the subject matter of this show cause notice and pertain to the earlier show cause notice issued to the noticees on similar issue. Both these contentions are, therefore, irrelevant to the present proceedings and need no comments". 24. The Commissioner passed the impugned order: a) Confiscating absolutely 1012 mobile phones with no valid IMEI No. under section 111(d); b) Confiscating....