Delhi High Court - Orders
Rohit Sakhuja vs Commissioner Of Customs Preventive on 21 August, 2024
Author: Yashwant Varma
Bench: Yashwant Varma
$~9 to 11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CUSAA 46/2024
ROHIT SAKHUJA .....Appellant
Through: Mr. Ashish Batra, Adv.
versus
COMMISSIONER OF CUSTOMS PREVENTIVE
.....Respondent
Through: Mr. Harpreet Singh, Senior
Standing Counsel with Ms.
Suhani Mathur, Advocate.
10
+ CUSAA 61/2024
NARESH KUMAR SHARMA .....Appellant
Through: Mr. Ashish Batra, Adv.
versus
COMMISSIONER OF CUSTOMS (PREVENTIVE)
.....Respondent
Through: Mr. Harpreet Singh, Senior
Standing Counsel with Ms.
Suhani Mathur, Advocate.
11
+ CUSAA 64/2024
KAMAL VIRMANI .....Appellant
Through: Mr. Ashish Batra, Adv.
versus
COMMISSIONER OF CUSTOMS .....Respondent
Through: Mr. Harpreet Singh, Senior
Standing Counsel with Ms.
Suhani Mathur, Advocate.
CUSAA 46/2024 & Connected Matters Page 1 of 6
This is a digitally signed order.
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CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
ORDER
% 21.08.2024 CM APPL. 28051/2024 (Ex.) in CUSAA 46/2024 Allowed, subject to all just exceptions.
Application stands disposed of.
CUSAA 46/2024, CUSAA 61/2024 & CUSAA 64/2024
1. Notice. Since the respondents are duly represented, no further steps need be taken.
2. We take note of the following classification of goods which was made in the course of adjudication and which has governed the ultimate imposition of duties and levy of penalty:-
Category/ type of goods Description and other details of the goods in each category A. Goods fraudulently removed 1. 6382 pcs. of imported R-22 gas from ICD, TKD in the cylinders of 13.6 Kgs each (import aforesaid eight containers. 'restricted' in the FTP), seized at godown in lane adjacent to Dr. Lakra's clinic, Village Ranhola, Nangloi and later shifted to CWC godown, Sahibabad.
2. 50 pcs. of imported R-22 gas cylinders of 13.6 Kgs each, detained at godown premises of Shri Satish Kumar Chadha, RZ-70, Vashishth Park, Opp. Janak Cinema, Sagarpur, New Delhi under panchnama dt. 12.06.2012.
3. 16 pcs. of imported R-22 gas cylinders of 13.6 Kgs each, detained/seized at godown premises of Suman Enterprises, C-3/5 and 4/5, Ground Floor, Lal Quarters, Krishna Nagar, Delhi-51 under panchnama dt. 10.06.2012.
4. 62,40,000 cigarettes of Indonesian origin (without statutory health warning) detained/seized at godown A-29, Ground Floor, Krishan Vihar, Delhi-86.
5. 1055 units of air conditioners of CUSAA 46/2024 & Connected Matters Page 2 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/08/2024 at 20:50:45 different brands seized at 76, Meera Enclave, Nangloi godown.
B. Imported goods found to be 1. The following goods detained/seized without labelling requirements at godown at A-59, Adhyapak Nagar, /MRP stickers. Apparently Nangloi:
illegally imported / smuggled (a) 323 units of 'O' General brand and apparently some of it window air conditioners, forming part of the (b) 745 outdoor units of 'O' general fraudulently removed goods in brand conditioners of different models, the aforesaid eight containers. (c) 718 indoor units of 'O' General brand air conditioners of different models,
(d) 63 outdoor units of Sanyo brand air conditioners, and
(e) 72 indoor units of Sanyo brand air conditioners
2. The following goods detained / seized at godown premises at 5575/75, Lower & Upper Ground Floor, Reghar Pura, Karol Bagh, New Delhi:
(a) 57 indoor/ outdoor units of split air conditioners of different models of O General Brand
(b) 16 indoor/ outdoor units of split air conditioners of different models of Sanyo brand
(c) 13 pcs of TVs of different models of Sony brand
(d) 2 pcs of TVs of Samsung brand
3. The following goods detained / seized at godown premises at WZ- 33A, Village Dasghara, P.O. Pusa, New Delhi:
(a) 183pcs of window air conditioners of O General Brand
(b) 126 indoor/ outdoor units of split air conditioners of different models of O General Brand
(c) 396 pcs of Oil Heaters
4. The following goods detained / seized at premises of Shri Ajay Kaushal, E-189, Shastri Nagar, New Delhi:
(a) 8 pcs of window air conditioners of O General Brand
(b) 8 indoor/ outdoor units of split air conditioners of different models of O General Brand
5. 17 sets (AOGR18AETH/ASGA18AET) of air conditioners detained / seized at CUSAA 46/2024 & Connected Matters Page 3 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/08/2024 at 20:50:46 the J-118, Adhyapak Nagar, Nangloi godown.
3. We note that the Order-in-Original had ultimately framed the following operative directions:-
"126. In view of the above discussions, I pass the following order: -
a) I confiscate the R-22 gas valued at Rs. 1,02,07,442/- (Rupees one crore two lakhs seven thousand four hundred forty two only) mentioned in Category A under Section 111(d),(f), (j) and (m) of the Customs Act, 1962. However, I give an opinion to the importer to re-export the same in view of the fact that, R-22 gas is a restricted item and is a ozone depleting gas. The same may be re-exported on payment of redemption fine of Rs. 50,00,000/- (Rupees fifty lakhs only) under Section 125 of the Customs Act, 1962.
b) I confiscate the cigarettes valued at Rs. 65,24,046/- (Rupees sixty five lakhs twenty four thousand forty six only) mentioned in Category A under Section 111(d), (f), (j) and (m) of the Customs Act, 1962. Since the said goods have already been disposed off by the Department, as such I do not give any option for redemption of the same under Section 125 of the Customs Act, 1962.
c) I confiscate 525 Sets and five units of air conditioners of 'O' General and 'Sanyo Brand' valued at Rs. 1,06,65,656/- (Rupees one crore six lakhs sixty five thousand six hundred eighty fifty six only) mentioned in Category A under Section 111(d), (f), (j) and (m) of the Customs Act, 1962. However, I give an option to get the same goods redeemed on payment of redemption fine of Rs. 30,00,000/-
(Rupees thirty lakhs only) under Section 125 of the Customs Act, 1962.
d) I confirm the duty amounting to Rs. 59,93,314/- (Rupees fifty nine lakhs ninty three thousand three hundred fourteen only) under Section 28(4) along with interest in respect of the said goods (Category A of Table 14 above, Annexure A, Charts A1 & A3), and the same is recoverable from them with interest in terms of the proviso to Section 28(4) read with Section 28AA of the Customs Act, 1962. Duty amounting to Rs. 1,66,43,034/- (Rupees one crore sixty six lakh forty three thousand and thirty four only) in respect of Cigarettes is not confirmed as the same had already been disposed off by the Department.
e) I confiscate the goods mentioned in Category B of Table 14 above (Annexure B, Chans B1 & B2), i.e. air conditioners, heaters, refrigerators, TVs, etc. having collective assessable value of Rs. 2,15,81,476/- under Sections 111(d), 111 (f), 111 (o) and 111(m) of the Customs Act, 1962. However, I give an option to the importer to get redeem the Air conditioners valued at Rs. 2,15,81,476/- (Rupees two crore fifteen lakhs eighty one thousand four hundred seventy six only) on payment of redemption fine of Rs. 50,00,000/- (Rupees CUSAA 46/2024 & Connected Matters Page 4 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/08/2024 at 20:50:46 fifty lakhs only) under Section 125 of the Customs Act, 1962.
f) I confirm the duty demand of Rs.61,48,024/- (Rupees sixty one lakhs forty eight thousand twenty four only) along with interest in respect of the said goods (Category B of Table 4 above, Annexure B, Charts B1 & B2), and the same is recoverable from them with interest in terms of the proviso to Section 28(4) read with Section 28AA of the Customs Act, 1962.
g) I impose a penalty of Rs. 40,00,000/- (Rupees forty lakhs only) on Shri Ajit Singh Chadha under Section 112, and 114AA of the Customs Act, 1962.
h) I impose a penalty of Rs. 40,00,000/- (Rupees forty lakhs only) on Shri Rohit Sakhuja under Section 112 and 114AA of the Customs Act, 1962.
i) I also impose a penalty of Rs. 2,86,84,373/- (Rupees two crore eighty six lakh eighty four thousand three hundred seventy three only) under Section 114A of the Customs Act, 1962 on Shri Ajit Singh Chadna and Shri Rohit Sakhuja."
4. Insofar as the imposition of customs duty on Category-A goods in toto is concerned, learned counsel submits that since the R-22 gas cylinders had been permitted for re-export upon payment of redemption fine, the levy of customs duty thereon is unjustified. It was his submission further, that insofar as Category-B goods are concerned, the Order-in-Original has proceeded on an incorrect premise that they had been smuggled and consequently the duties and penalties imposed in connection therewith would not sustain.
5. It was also submitted that once penalties under Section 114A of the Customs Act, 1962 ['Act'] had been imposed, no further penalties under Section 112 or 114AA of the Act could have been levied bearing in mind the Fifth Proviso appended to that provision. Matter requires consideration.
6. We accordingly admit these appeals on the following questions of law:-
A. Whether imposition of penalty of INR 2,86,84,373/- under Section 114A of the Act being much more than the CUSAA 46/2024 & Connected Matters Page 5 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/08/2024 at 20:50:46 duty determined under sub-section 8 of Section 28 of the Act as envisaged under Section 114A(1) of the Act permissible as per the mandate of Section 114A? B. Whether the Department has discharged its burden of proof regarding smuggling of Category B goods? C. Whether in absence of Department discharging its burden of proof in respect to smuggling of Category B goods, confiscation thereof and imposition of redemption fine, penalty and confirmation of Customs duty was justified?
D. Whether imposition of penalty simultaneously under Section 112 and 114A of the Act is permissible, in view of fifth proviso to Section 114A of the Act? E. Whether, customs duty could be confirmed in respect to R-22 gas cylinders which have been permitted to be re- exported and not allowed to be released for home consumption?
7. List again on 26.11.2024.
YASHWANT VARMA, J.
RAVINDER DUDEJA, J.
AUGUST 21, 2024/RW CUSAA 46/2024 & Connected Matters Page 6 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/08/2024 at 20:50:46