LIAQUAT ALI HAMEED Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THIS appeal is directed against the order in original No. 56/2002 -INT, dated 23 -7 -2002 passed by the Commissioner of Customs (Airport) Chennai by which the Commissioner has confiscated electronic goods of foreign origin valued at Rs. 24,21,7000/ - under Sections 111(d), 111(1) & 111(m) of the Customs Act, 1962, the Act for short, read with Section 3(3) of the Foreign Trade (Development & Regulation) Act, 1992, and allowed the appellant to redeem the goods, except watches which are valued at Rs. 1,08,2000/ -, on payment of fine of Rs 15,00,000/ -. He has absolutely confiscated watches valued at Rs. 1,08,2000/ - under Sections 111 (d), (l) & (m) of the Act, besides imposing penalty of Rs. 2,50,000/ - on the appellant under Section 112(a) of the Act.

(2.) SHRI Abdul Jaffer, learned Counsel appeared for the appellants and he invited our attention to the decision of the Larger Bench of the Tribunal in the case of Hemant Bhai Patel v. CC, Ahmedabad reported in : 2003 (153) E.L.T. 226 wherein the Bench has held that permission granted for re -export of goods on the basis of a request made by the owner of the goods is outside the purview of the adjudication proceedings in terms of Sections 111, 112 and 125 of the Customs Act, 1962. He has submitted that the appellant has come from Colombo along with six baggage and after collecting the baggage he opted for Red Channel and he was allotted Customs Table No. 14. There, the DRI officers intercepted him on the suspicion that he was carrying electronic goods and that he was likely to misdeclare the same. The DRI officers also seized a baggage declaration made by the appellant, a copy of which is filed at page 6 of the paper book. He has also referred to the statement obtained from the appellant and submitted that his intention was to pay duty, (though he misdeclared) on spotting the DRI officers, the appellant wanted to pay duty. He also submitted that Customs Clearance card cannot be equated with declaration under Section 77 of the Act as it contains different columns and hence it cannot be said that the appellant has made a mis -declaration. He has pleaded that in terms of Section 141 of the Customs Act, 1962, all conveyances and goods in a customs area shall, for the purpose of enforcing the provisions of this Act, be subject to the control of officers of the Customs and in terms of Section 2(11) Customs area means the area of a customs station and includes any area in which imported goods or export goods are ordinarily kept before clearance by Customs authorities. In the present case when the goods were under the control and custody of the DRI Officers, as the goods were seized by the DRI, before the appellant had the option to pay the fine and the appellant would have exercised his valuable right under Section 77 read with Section 80 to re -export. He has also referred to page 70 of the paper book wherein a copy of the order passed by the Joint Secretary on the revision application filed by an applicant, has been filed wherein in similar circumstances, where the goods imported had been allowed to be re -exported on payment of fine and penalty. He has also invited our attention to the order of the East Regional Bench of the Tribunal in the case of Umesh Kumar Singh v. CC, reported in : 1992 (62) E.L.T. 655 wherein the Bench has ordered release of the goods in similar circumstances. He has submitted that these orders have not been considered by the adjudicating authority in the present case. The learned Counsel therefore, prayed for allowing re -export of the goods or in the alternative, the appellant be allowed to clear the goods on payment of duty. He also submitted that the value in respect of Nikhon FM 10 Zoom Camera, 25 Nos. while the value taken by the DRI officers is Rs. 45,000/ - per piece, the adjudicating authority has adopted the value of Rs. 12,000/ - per piece and the plea made by the appellant in this regard has been noted on page 10 of the order impugned. He, submitted that the lower authority has not considered these factors while passing the order in original. He, therefore, prayed for allowing re -export of the goods or alternatively allowing the appellant to clear the goods on payment of duty.

(3.) SHRI P. Devaludu, learned JDR appeared for the Revenue and submitted that the appellant was indulging in organized smuggling of foreign goods into the Country and initially, he made a false declaration that the value of the goods brought by him was only for Rs. 1,53,000/ - whereas even according to his own calculation, the total value of the goods brought by him is approximately Rs. 20,00,000/ -, though according to the valuation adopted by the department, it comes to Rs. 24,21,700/ - as detailed under para 3 of the impugned order. He has also invited our attention to the judgment of the Hon'ble Supreme Court in the case of CC, Bombay v. Elephanta Oil and Industries Ltd. reported in : 2003 (152) E.L.T. 257 (S.C.) wherein the Apex Court has ruled that confiscation of the goods and thereafter permitting the importer to re -export the same would not mean that penalty under Section 112 of the Customs Act, 1962 cannot be levied. It was also held therein that power to levy penalty under Section 112 ibid for importation of the goods is different from the power of confiscation of goods under Section 125 ibid and giving an option to pay in lieu of confiscation such fine as the authority thinks fit. He, therefore, prayed upholding the impugned order and dismissal of the appeal.