M/S Rajesh Kumar vs C.C. New Delhi (Air Cargo Export)

[Arising out of Order-In-Appeal No. CC(A) CUS/486/2014 dated 26.03.2014 passed by C.C. (Exports) New Delhi]

Appeal No. C/53228/2014-C[SM]

[Arising out of Order-In-Appeal No. CC(A) CUS/488/2014 dated 24.03.2014 passed by C.C. (Exports) New Delhi]

Appeal No. C/53490/2014-C[SM]

[Arising out of Order-In-Appeal No. CC(A) CUS/428/2014 dated 31.03.2014 passed by C.C. (Exports) New Delhi]

Appeal No. C/53491/2014-C[SM]

[Arising out of Order-In-Appeal No. CC(A) CUS/492/2014 dated 31.03.2014 passed by C.C. (Exports) New Delhi]

Appeal No. C/53492/2014-C[SM]

[Arising out of Order-In-Appeal No. CC(A) CUS/414/2014 dated 31.03.2014 passed by C.C. (Exports) New Delhi]

Appeal No. C/53493/2014-C[SM]

[Arising out of Order-In-Appeal No. CC(A) CUS/434/2014 dated 31.03.2014 passed by C.C. (Exports) New Delhi]

For approval and signature:

Hon'ble Mr. S.K. Mohanty, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

M/s Rajesh Kumar ...Appellant(s)

Raj Kumar

Arjun Kumar

Ram Kumar

Ganesh Kumar

Raman Kumar

Vs.

C.C. New Delhi (Air cargo export) Respondent(s)

Appearance:

Mr. V.S. Negi (Advocate) for the Appellant

Mr. G. R. Singh (DR) for the Respondent

CORAM:

Hon'ble Mr. S.K. Mohanty, Member (Judicial)

Date of Hearing/ Decision. 15.09.2015

Final Order No. 54024-54029/2015_

Per S. K. Mohanty:

The appellants have filed these appeals against the impugned orders dated 24.03.2014, 26.03.2014 and 31.03.2014 passed by the Commissioner of Customs (Appeals), New Delhi. In the impugned order dated 26.03.2014 and 31.03.2014, the Ld. Commissioner (Appeals) has reduced the quantum of redemption fine and penalty imposed in the adjudication order and upheld the same vide impugned order dated 24.03.2014.

2. Brief facts of the case are that the goods imported from Hong Kong to New Delhi through EMS speed post were examined by the officers of SIIB branch of Export Commissionerate. On examination, it was detected that button cell and watch parts were contained in the imported parcel, instead of house hold articles as declared by the importers. Based on the investigation report and on scrutiny of the import documents vis-a-vis the goods contained in the parcel boxes, Show Cause Proceedings were initiated against the appellants, which culminated in the adjudication orders, wherein the seized goods were confiscated, with the option to the importer to redeem the same on payment of redemption fine. Besides, penalties were imposed on the appellants by the adjudicating authority in terms of Section 112(a) of the Act. In appeal, the Ld. Commissioner (Appeals) has confirmed imposition of redemption fine and penalty, but reduced the quantum, excepting in the order dated 24.03.2014. Confirmation of redemption fine and imposition of penalty in the impugned orders are the subject matter of present dispute.

3. Sh. V. S. Negi, the Ld. Advocate appearing for the appellant submits that goods imported through post parcel are not liable for seizure/ confiscation under Section 111 of the Customs Act, 1962 and accordingly, no redemption fine and penalty are imposable on the appellants. To support such stand, the Ld. Advocate has relied on the decision of this Tribunal in the case of Sandhya Jewelers vs Comm. of Customs (Ahmadabad) reported in 2013 (293) ELT 412 (Tri. Amd.) and Kuresh Laila vs Commissioner of Customs, Chennai reported in 2005 (189) ELT 415 (Tri. Chennai).

4. On the other hand, Sh. G.R. Singh the Ld. DR appearing for the Respondent reiterated the findings recorded in the impugned order and relied on the decision of this Tribunal in the case of Arun Kumar vs CCE New Delhi (Final Order No. A/54657/2014-SMB dated 09.12.2014) to justify his stand that imposition of redemption fine and penalty are justified in the facts and in the circumstances of the case.

5. I have heard the Ld. Counsel for both the sides and perused the records.

6. It is an admitted facts that the goods were imported through EMS Speed Post, which were not liable to seizure/ confiscation in terms of Section 111 of the Customs Act, 1962. Since the provisions of Section 111 do not specifically deal with seizure of goods imported through post parcel, I am of the view that imposition of redemption fine and penalty are not in conformity with the statutory provisions. I find that the Tribunal in the case of Sandhya Jewelers (supra) and Kuresh Laila (supra) has set aside confiscation of goods, holding that Section 111 of the Act will have no application in case of import of goods through post parcel, and resultantly, set aside the original orders imposing redemption fine and penalty.

7. The decision cited by the Ld. DR in the case of Arun Kumar (supra) has not considered the Division Bench order of Tribunal in Sandhya Jeweler. Since the decision of Tribunal in the case of Arun Kumar was by a single member bench and the decision of Division Bench has not been relied on therein, in my considered view, such decision is per incurium and cannot be relied on for deciding the issue in hand.

8. Therefore, following the judgment of this Tribunal in the case of Sandhya Jeweler (supra), I allow the appeals in favour of the appellants by setting aside the impugned orders.

(Operative portion of the order pronounced in the open court)

(S. K. Mohanty)

Member(Judicial)

Neha

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C/53230,53228,53490-53493/2014[SM]