Decided on August 14,2015

Vijay Kumar Chaudhery Appellant
Commr. Of Customs, Patna Respondents

Referred Judgements :-



H.K.THAKUR,MEMBER (T) - (1.)This appeal has been filed by the appellant against Order -in -Appeal No. 665/Pat/Cus/Appeal/2014 dated - 31/10/2014 passed by Commissioner (Appeal), Patna as first appellate authority. Under this Order -in -Appeal dt. 31/03/2014 has upheld Order -in -Original No. 51 -Cus/ADC/Hqrs./2013 dated - 30/09/2013, passed by the Adjudicating authority, confiscating 3,437 number Chinese mobile phones under Sec. 111(d) & (i) of the Customs Act, 1962 and also imposed a penalty of Rs. 4,00,000/ - upon the appellant.
(2.)Sri K.P. Dey (Advocate) appearing on behalf of the appellant argued that a consignment of 3,437 mobile phones of Chinese origin was seized by the Revenue on 20/09/12 from one SLR Van which was under lease contract of M/s. Shiv Shakti Carriers & Cargo under the Proprietorship of the appellant. That after detailed investigation, show cause notice dt. 28/02/2013 was issued, inter alia, to the appellant for confiscation of the seized goods & for imposition of penalty under Sec. 111(d) of Sec. 112 of the Customs Act, 1962. That adjudicating authority confiscated seized goods under Sec. 111(d) & 111(i) of the Customs Act, 1962 when Sec. 111(i) was not even invoked in the show cause notice. That a penalty of Rs. 4.00 Lakh was imposed upon the appellant vide Sec. 112(b) of the Customs Act, 1962. That an appeal filed by the appellant with Commissioner (Appeal) was rejected by the first appellate Authority. It was his case that Commissioner (Appeal) has wrongly decided that appellant cannot be given redemption as he is not the owner and strongly argued that as per the provisions of Sec. 125 of the Customs Act, 1962 the person from whose possession the goods are seized is also entitled to get redemption of goods. He relied upon the following case laws in support of his argument:
(i) T. Elavarasan Vs. C.C. (Airport), Chennai reported in : 2011 (02) LC 0015.

(ii) Yakub I. Yusuf Vs. C.C., Mumbai reported in, 2010 (10) LCX 0124

2.1 Learned Advocate further argued that out of 3437 mobile phones only 388 pcs. were found to be not conforming to the condition of Notification No. 44 (RE -2000)/1997 -2202 dated 24/11/2000 and that a transporter cannot be expected to have such knowledge. That once Department has sold the confiscated goods in E -auction, it is implied that statutory provision of Notification No. 44 (re -2000)/1997 -2002 DATED - 24/11/2000 was not absolute prohibition & redemption could be allowed under Sec. 125 of the Customs Act, 1962.

2.2 Regarding requirement of IMEI No. under Notification No. 14/2009 -14 dated 14/10/2009 is concerned, Ld. Advocate argued that there was not a whisper of this prohibition in the show cause notice and adjudicating authority, without giving the appellant any opportunity to explain, held that importer has to declare valid IMEI No. of each mobile phone imported. That by doing this, the adjudicating authority and the first appellate authority has exceeded the scope of the show cause notice dated 28/02/2013.

2.3 Learned Advocate further argued that no duty liability arises in case of town seizures as held by the following case laws:

(i) Yakub I Yusuf Vs. C.C. Mumbai) (supra)

(ii) CCE, Surat -II Vs. Mahadev Enterprise reported in, 2011 (301) ELT 150 (Tri -Ahmedabad)

2.4 Regarding imposition of penalty vide Sec. 112(b) it was argued that no penalty can be imposed on the appellant as he had no knowledge that goods were liable to confiscation.

(3.)Shri S.N. Mitra (A.R.) appearing on behalf of the Revenue argued that disposal of goods involved in this appeal was made by the department after intimating the Advocate of the appellant. It was his case that there was no specific direction from the Bench regarding non disposal of the confiscated goods. That appellant is not the importer of the goods and cannot claim the redemption of seized/confiscated goods of which he is not the owner. On the issue of requirement of IMEI no on each mobile phone, as per Notification No. 14/2009 -14 dated - 14/10/2009, learned A.R. defended the orders passed by the lower authorities on the grounds that appellant has not discharged onus of non smuggled nature of the seized goods.

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