Custom, Excise & Service Tax Tribunal
Harinder Singh vs Cc, New Delhi on 4 March, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
DIVISION BENCH
Court No.2
Date of hearing/Decision: 04.03.2014
Appeal No.C/357/2009-Cus
(Arising out of Order-in-Appeal No.03/MKG/2009 dated 5.03.09 passed by CC, New Custom House, New Delhi)
Harinder Singh Appellant
Vs.
CC, New Delhi Respondent
Appeal No.C/358/2009-Cus Azizur Rehman Hamid Hamidani Appellant Vs. CC, New Delhi Respondent Present for the Appellant: None Present for the Respondent: Ms.RanjanaJha, JCDR Coram: Honble Mr.D.N.Panda, Judicial Member Honble Mr.Manmohan Singh, Technical Member FINAL ORDER No.50913-50914/2014 PER: D.N.PANDA None present for both appellants nor is there any adjournment application. Notices have been returned back un-served.
2. When there was smuggling of goods as per panchnama dated on 19.7.2006 and resulted in discovery of offending goods, proceedings were initiated against both appellants. While appellant Sri Harinder Singh was found to be master mind and was principal smuggler, he had engaged Azizur Rehman Hamid Hamidani, a conduit to be carrier of smuggled goods. Both were implicated in the proceedings. Rehman Hamid Hamidani faced penalty of Rs.10 lakh and Sri Harinder Singh was faced penalty of Rs.25 lakh.
3. Customs has brought out allegation in para 23 of adjudication order as appearing in pages 44 to 47 of the appeal folder. Ld.Adjudcating authority has also categorically brought out how goods covered by panchnama were valued at Rs.1,29,55,750/- and assessable value thereof was determined at Rs.88,88,877/- were liable to confiscation being prohibited goods. Appellant did not declare goods to Customs and no clearance was sought to made through red channel. The goods were concealed in suitcase/bags/packages which were seized by Customs.
4. Ld.DR submits that Appellant Sri Harinder Singh was found to be master mind and he was main smuggler using service of Azizur Rehman Hamid Hamidani, a conduit. Merely pleading innocence they tried to escape from liability under the law. Both appellants were arrested for involvement in smuggling of goods and the goods seized not being disowned by them, they attached themselves to the offence committed. Adjudication was made based on material facts and cogent evidence. That does not call for interference.
5. Heard learned JCDR and perused the records.
6. It was found by learned adjudicating authority in page 60 of adjudication order that four important questions involved in the present case. First question was answered in para 37 of his order as under:-
37. The first question to be decided in this case is whether the goods having Panchnama value Rs.1,29,55,750/- and assessable value of Rs.88,88,877/- are liable to confiscation under section 111 (d), 111(l) and 111(m) of the Customs Act, 1962. I find that goods under seizure are memory cards, RAMs, memory card connectors and MP4 cell phones. The goods have been imported in baggage in large quantities as mentioned in the show cause notice. As per Rule 3 of the Baggage Rules, 1998 an Indian resident is allowed to clear free of duty articles in his bonafide baggage. Articles up to value of Rs.25,000/- are allowed as free of duty. This benefit is available to bonafide household goods and personal effects. Para 2 (20) of the Export-Import Policy 2004-2009 provides that only bonafide household goods are personal effects may be imported as part of passenger baggage, it is thus clear that import of goods in commercial quantities in baggage is not permitted. As per section 3(3) of the Foreign Trade (Development and Regulation) Act, 1992 all goods to which any order under sub-section (2) applies shall be deemed to be goods the import or export of which has been prohibited under section 11 of the Customs Act, 1962 and all the provisions of that Act shall have effect accordingly. Rule 11 of the Foreign Trade (Regulation) Rules, 1993, stipulates that owner of the imported goods shall state the value, quantity and description of goods, and shall state in the documents prescribed under the Customs Act, 1962 the value, quantity and specification of such goods to the best his knowledge and shall subscribe a declaration of the truth of such statement at the foot of such document.
Since, the goods are in commercial quantities and their import is prohibited, these are liable to confiscation under section 111 (d) of the Customs Act, 1962. The goods have not been declared as required under section 77 of the Customs Act, 1962. In the declaration filed by the passenger no value of dutiable goods imported has been declared. It is therefore, evident that the goods under seizure have not been included in the declaration made. Therefore, the goods are liable to confiscation under section 111(l) and 111(m) of the Customs Act, 1962. In the facts and circumstances of this, it is held that the goods under seizure are liable to absolute confiscation under section 111 (d), 111(l) and 111(m) of the Customs Act, 1962.
7. Second question was answered in para 38 of the adjudication order appearing at page 61 of appeal folder as under:
38. The second question to be decided is whether the suitcases, hand bags and packages used for packing/concealing of the goods under seizure are liable to confiscation under section 118(a) and 119 of the Customs Act, 1962. Section 118 (a) provides that where any goods imported in a package are liable to confiscation, the package and any other goods imported in that package shall also be liable to confiscation under section 119 of Customs Act, 1962 provides that nay goods used for concealing smuggled goods shall also be liable for confiscation. As the goods are held liable to confiscation, the suitcases, hand bags and packages are also liable to confiscation under section 118(a) and section 119 of the Customs Act, 1962.
8. Third question was answered in para 39 of the adjudication order as under:-
39. The third question to be answered is whether Customs Duty and Cess amounting to Rs.31,73,329/- is recoverable from Shri Azizur Rehman Hamid Hamidani and Shri Sh.Harinder Singh jointly or severely under Section 28 of the Customs Act, 1962. As the goods are held liable for absolute confiscation, no duty and cess is recoverable under section 28 of the Customs Act, 1962.
9. Fourth question was answered in para 40 of the adjudication order as under:-
40. Fourth question to be answered is whether Sh.Azizur Rehman Hamid Hamidani, Sh.Harinder Singh, Mrs.Farida Bano Mohammed Hussein Sheikh, Sh.Manbir Singh and Sh.R.C.Bhardwan are liale to penalty under section 112 and 114A of the Customs Act, 1962, it is felt that provision of section 114A is not applicable as the goods are absolutely confiscated and no duty is demandable under section 28 of the Customs Act, 1962.
10. There was no defence lead by any of the appellants to prove that those offending goods were not smuggled goods. Therefore, in para 40(c) of the adjudication order, adjudicating authority found that Shri Harinder Singh was real person behind smuggling and was arrested and produced before Magistrate. He merely pleaded his innocence before Magistrate and also pretended to be stranger to Azizur Rehmani Hamid Hamidani. The said appellant when confessed that he was master mind behind this smuggling, he retracted subsequently by his statement dated 30.8.2006 and 3.11.2006. But his concessional statement brought out truth of smuggling. He could not demolish his active role and concern in the smuggling. Shri Harinder Singh was found to be master mind behind smuggling as is proved from the statement dated 30.8.2006 and 3.11.2006 recorded from Azizur Rehmani Hamid Hamidani. That remained un-rebutted. There was no detachment of the goods from the concern and connection of both appellants. They were found in physical possession of the goods. Therefore there is no scope at all to hold that both appellants to be innocent. Accordingly both the appeals are dismissed.
(Dictated & pronounced in the open court)
(MANMOHAN SINGH) (D.N.PANDA)
TECHNICAL MEMBER JUDICIAL MEMBER
mk
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Appeal No.C/326/2009-Cu