TaxTMI 
TaxTMI 
2026 (9) TMI 903
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....lothes valuing Rs. 6,98,570/- mentioned at Sl No. 2, 6, 20, 21 & 29 in the List (C) of SCN under Section 111(f), 111(i), 111(1), 111(m) of the Customs Act, 1962. (iii) I order for confiscation of the seized undeclared clothes valued at Rs 76,361/-mentioned in the List (B) of SCN under Section 111(1), 111(i), 111(1), 111(m) of the Customs Act, 1962. However, I give an option for redemption of said garments to its lawful owner as envisaged under Section 125 of the Customs Act, 1962 on payment of redemption fine Rs 11500/- along with applicable rate of Customs duty leviable thereon within the time as stipulated under Section 125(3) of the Customs Act, 1962, in lieu of the confiscated foreign origin garments valued at Rs.76,361/-. The cash security deposited by the noticee at the time of provisional release of goods can be appropriated against redemption fine imposed as above under Section 125 of the Act. (iv) 1 order for confiscation of the seized declared clothes valued at Rs. 5,58,126/- mentioned in the List (B) of SCN under Section 118 of the Customs Act, 1962. However, I give an option for redemption of said garments to its lawful owner as envisaged under Section....
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....ASS, Airport Authority off India, CCSI Airport, Lucknow) and the importer. 2.4 On physical examination of the goods as detailed in table below, it was found in the package that the goods were grossly mis-declared, they were put under seizure as per Panchnama/recovery memo dated 09.09.2019:- 2.5 Shri Gaurav Shukla, proprietor of M/s Ashthvinayak & Co. Munshipulia, Lucknow, in his statement recorded on 11.09.2019 under Section 108 of the Customs Act, 1962 stated that:- ⮚ he has been involved in business of the trading of imported garments, fabric and garment accessories since the Year, 2011; ⮚ he imports readymade garments and accessories from M/s. Nand Enterprize Co Ltd. Room No-909, Wayson Commercial Building, 28 Connaught Road, West Sheung Wan, Hong Kong, China; ⮚ They had not procured any goods from the domestic market; ⮚ Either he himself or any representative not visited China for union with the supplier regarding purchase and price of the import commodities. ⮚ he did not have any contact number of both of his suppliers in China. He places order to the supplier abroad as per his requirements, ....
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....zed goods alongwith bank guarantee/cash security @ 10% of the bond value. 2.9 The value of the seized goods was determined as in table below:- 2.10 After following the due procedure in respect of branded goods found within the consignment and on completion of investigations, a show cause notice dated 04.03.2020 was issued to the appellant asking them to show cause as to why:- (i) The Goods of different brands total valued at Rs. 4,21,850/-mentioned in the Tabulated List (C) of Para 7.1 of this notice above excluding the goods mentioned at Sl. No.2, 6, 20, 21 & 29 of the list, should not be absolutely confiscated under Section 111(d) of the Customs Act, 1962 as the same has been brought into India in violation of the Section 46 read with Section 11(2)(n) & (u) of the Customs Act, 1962 and why the same should not be disposed off under Rule 11 of the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007; as (ii) The Goods of different brands as mentioned at SI No. 2,6,20,21 & 29 in the Tabulated List (C) of Para 7.1 of this notice above total valued at Rs.6,98,570/- should not be confiscated under Section 111(f), 111(i), 111(l), 111(m) of the Cu....
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....ign supplier only. ⮚ The only case made against him is vis-à-vis non supply of e-mail by which the order paced from the foreign supplier. ⮚ He requested that a lenient view to be taken in the matter. 3.3 Authorized Representative reiterates the findings recorded in the orders of the lower authorities. 4.1 I have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 For upholding Order-in-Original, impugned order records the findings as follows:- "On going through the grounds of appeal of the appellant I find that the appellant has alleged that the competent authority has not followed the relevant instruction No.01/2017-Customs, F.No.591/04/2016-CUS (AS) dated 08.02.2017. I find that the department did not pass appropriate order in addition to the Panchnama as mentioned in above instruction and the same has also been discussed by the original adjudicating authority in Para 4.12 of the impugned order. It is also discussed that the Panchnama/Recovery Memo was drawn in presence of the appellant wherein all ground of reasonable belief was clearly mentioned by the officers of C....
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.... reasons to believe that the goods are liable to confiscation in terms of section 111 of the Customs Act, 1962. In this context, it may please be borne in mind that Customs is enforcing laws in personam while protecting intellectual property rights. Thus it is important to make sure that the right holder participates in the Customs proceedings. In case the right holder abstains, the Customs have no obligation to continue with the detention and the goods shall be released forthwith, if otherwise in order." In para 4.13 of impugned order, it is clearly mentioned that on being informed by the Customs officer, the right holders of seized branded goods have joined the proceedings promptly and except two, all others of them (right holders of the goods mentioned at Sl.No.2,6,20,21 & 29 of the list C mentioned in impugned order), submitted their technical report and requested therein that the goods should not be released under any circumstances and appropriate action should be taken against the imported under the provision of intellectual property Rights (Imported Goods) Enforcement Rules, 2007. The goods mentioned at Sl.No.2,6,20,21 & 29 of the list C, pertaining to two brands on....
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....ugh e-mail but they could not produce the copy of that e-mail to substantiate the claim. I fail to understand the reason as to why the appellant could not produce the copy of the e-mail to the Customs Officers, as the copy of e-mail can be retrieved any time. Appellant also pleaded in their grounds of appeal that they have neither paid any amount over and above transaction value declared in bill of entry, nor the department could produce any evidence showing extra consideration over and above the transaction value, the same is liable to be rejected as in para 1.9 of the impugned order, the appellant stated in their statement dated 11.09.2019 recorded under Section 108 of the Customs Act, 1962 that they had not yet made any payment to the supplier against the goods brought/imported into India under the said AWB No.06533160713. On perusal of O-I-O, it is found that the appellant could not produce any record regarding payment in respect of goods imported by them. I am of the considered opinion that the appellant has no evidence vide which they could establish their bonafide. As regards the Appellant's plea that they are not liable for imposing any penalty under Section 11....
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....deemed, the order to this extent cannot be faulted with. However, I find that redemption fine of Rs.85,000/- imposed on the appellant to be excessive when compared with the value of the goods said to be released against the same. Accordingly, I reduce the redemption fine to the 10% of the declared/assessed value of the goods i.e. Rs.55,812/-. 4.5 I also observe that the import in the course if international trade are not made in the manner that appellant wants to impress upon me. He cannot be innocent in respect of supply of the undeclared goods from the foreign supplier without any purchase order, invoice etc. How can the claim may be made by the appellant to be accepted when even after seizure and relinquishment of the total foreign supplier do not make any claim to the said goods in case of excess supply foreign supplier would definitely seek re-export if the submission of the appellant would have accepted, I do not find much merits in the submission of the appellant. 4.6 In case of Matrix Info Systems Pvt. Ltd. [Final Order No A/85122-85123/2019 dated 17.01.2019 in Customs Appeal No 88129 & 88400/2018], Mumbai Bench has observed as follows: "5.10 Accordingly the ....
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....hat even on 30-10-1995 the supplier's bank, that is, Bank of Baroda, had sent a telex message to Punjab National Bank, the importers bank, seeking return of the import documents and on 31-10-1995 appellant received a fax letter from the supplier intimating that the consignment was wrongly shipped though meant for some other party and requesting the appellant to accept the consignment "as on whereas basis in view of the old business relation". Documents were collected and sent back to the supplier who issued fresh set of documents describing the goods as shown in the amended IGM. 4,5,6 ....... 7. For the reasons indicated above, we confirm the order to the extent it relates to confiscation of the goods in regard to ITC angle and mis-description of goods and imposition of penalty but set aside confiscation on account of mis-declaration of value, quantification of redemption fine and quantification of penalty. The case is remanded to the jurisdictional adjudicating authority for deciding afresh the correct assessable value and quantifying redemption fine and penalty. If the Department desires to rely on further documents, copies of the same may be furnished to the ap....
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....de mistake clearly appears to be an afterthought. This stand of the petitioner is not borne out from any contemporaneous documents on record. There is no invoice, airway bill, purchase order or any other document stating that goods were meant to be delivered to a Singapore based customer. The petitioner has failed to make out a case of bona fide mistake and the findings of the ACC (Imports) to the said effect are unsustainable in law. The non-imposition of fine is also contrary to a bare reading of Section 125 of the CA which reads : Option to "125. pay fine in lieu of confiscation. - (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof if prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods [or, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit : Provided that, without prejudice to the provisions of the proviso to sub....
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.... (A) Section 112 of the Customs Act reads as follows:- "SECTION 112 : Penalty for improper importation of goods, etc. - Any person, - (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111, or abets the doing or omission of such an act, or (b) who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111.". Section 74 of the Customs Act reads as follows :- "74. Liability to penalty - Any person who, in relation to any gold does or omits to do any act which act or omission would render such gold liable to confiscation under this Act, or abets the doing or omission of such an act, or is in charge of the conveyance or animal which is liable to confiscation under this Act, shall be liable to a penalty not exceeding five times the value of the gold or one thousand rupees whichever is more, whether or not such gold has been confisc....
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....rovisions of the Act and the Regulations would immediately attract the levy of penalty irrespective of the fact whether contravention must be made by the defaulter with guilty intention or not. We also further hold that unless the language of the statute indicates the need to establish the presence of mens rea, it is wholly unnecessary to ascertain whether such a violation was intentional or not. On a careful perusal of Section 15-D(b) and Section 15-E of the Act, there is nothing which requires that mens rea must be proved before penalty can be imposed under these provisions. Hence once the contravention is established then the penalty is to follow." In Commissioner of Customs (Preventive) v. Aafloat Textiles (I) P. Ltd. - 2009 (235) E.L.T. 587 (S.C), the Supreme Court held that principles of "Caveat Emptor", that is the buyer be aware, is applicable even when a person makes any imports under the forged licence. Their Lordships observed as follows in Paragraph 27 as follows : "27. Whether the buyer had made any enquiry as to the genuineness of the licence is within his special knowledge. He has to establish that he made enquiry and took requisite precautions to f....
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....ge wise list of Goods Seized Sr No. Pkg. No. as per packing ist Items found to be contained in the packet after 100% examination Declared by the importer as per packing list Goods found in unit) after 100% examination 1 GO24 Girls Top 150 150 2 GO24 Ladics Jacket 100 100 3 GO25 Girls Top 170 185 4 GO25 Hoody Jacket 0 54 5 GO25 Ladies Jacket 0 10 6 GO26 Girls Top 180 1 195 7 GO26 Ladies Middy 10 20 8 GO27 Girls Top 150 205 9 GO28 Girls Top 180 84 10 GO28 Girls Top (Brand -Gucci 0 119 11 G028 Ladies Jacket 24 0 12 GS 54 Girls Top 180 230 13 GS 55 Girls Top 175 223 14 MJ93 Baby Top 306 450 15 MJ94 Baby Top 218 218 6 MJ94 Kids Pant 0 96 17 MJ95 Baby Romper 0 :' 40 18 MJ95 Baby Top 40 24 le 19 MJ95 Cap 7KG 73 nos. 20 MJ95 Cap (Brand . GAP) 0 55 21 MJ95 Kids Frock 70 00 22 MJ95 Kids pant 64 94 23 MJ96 Baby Top 131 35 24 MJ96 Kids Jacket (Brand - ADIDAS) 0 36 25 MJ96 Kids Jacket 82 24 26 MJ96 Kids Jacket (Brand Gucci) 0 16 27 MJ96 Kids pant 50 80 28 MJ96 Kids set 0 18 29 MJ96 Kids set (Brand - Louis Vuitton) 0 24 30 MJ96 Kids set (Brand - Under Armour) 0 9 31 MJ96 Skirts 0 40 32 MJ97 Baby 2pc Set 0 33 33 MJ97 Baby 2pc Set 0 35 34 MJ97 Baby To....
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....0 125 117 RC53 Kids Set (Brand - Adidas] 0 60 118 RC53 Kids Set 85 0 119 RK110 Girls Top 120 110 120 RK111 adies Middy 105 120 121 RK112 Ladies Middy 70 90 122 RK113 Girls Top 250 350 123 RK114 Baby Romper 0 48 124 RK114 Baby Top 48 0 125 RK114 Girls Top 19 0 126 RK114 Jump Suit 0 55 Total 6667 Document 2 LIST {A} Goods declared in the BE and found to be contained in the packages: SI. No. Item's description Quantity Estimated seizure Value (in INR) 1 Baby Top 1378 1,02,606/- 2 Kid's Jacket 91 12,705/- 3 Kid's set 637 71,147/- 4 Men's T shirt 26 7,316/- 5 Men's Shirt 16 7,531/- 6 Men's trouser 59 21,966/- 7 Sun glasses 125 6,537/- 8 Ladies Jacket 110 25,596/- 9 Bag 46 4,595/- 10 Girl's Top 1732 2,01,565/- 11 Kid's Frock 153 12,816/- 12 Kid's Pant 521 43,643/- 13 "Kid's Short 0 0 14 Ladies Middy 230 38,533/- 15 Belt 1.5 Kgs 428/- 16 Cap 4 Kgs 1,142/- 17 Scarf 0 0 TOTAL 5,58,126/- "Kid's Short & Scarf have been declared in the BE but nothing was stuffed in the pigs, hence qty is 'O' LIST (B) un-declared (other than suspected branded/IPR protected goods) SI. No. Item'....