Saroj Goenka Vs. Collector of Customs - Court Judgment

Excerpt:
1. this revision application filed before the govt. of india against the impugned order of the appellate collector of customs, madras, dated 18-12-1981 stands transferred to the tribunal in terms of section 131b of the customs act, 1962, hereinafter referred to the 'act' for short, for being disposed of as if it were an appeal.2. on 13-8-1980, one shri m.r. swaminathan arrived at madras harbour from singapore bringing with him among other things a sony colour t.v.and one akai video cassette recorder of foreign origin with which alone we are concerned in the present appeal. the authorities coming to know that the said goods brought by shri swaminathan were meant only for the appellant, instituted proceedings against the appellant on the ground that the goods have been imported in contravention of law without a valid import licence and the proceedings thus instituted eventually culminated in the present impugned order now appealed against.3. shri subramaniam, the learned consultant for the appellant submitted that in terms of section 79 of the act, any article in baggage of a passenger declared as a bona fide gift is permissible for clearance as an item of baggage. in the present case, it was urged that the goods in question were gifted to the appellant by one shri veerappan, a news agent of indian express newspaper at singapore and merely because the gifted articles were carried through one shri swaminathan, the articles would not lose the character of a "gift". it was further urged that if the goods are construed as baggage items under law, there is no need for any adjudication and the impugned original order of adjudication and the appellate collector's order imposing a fine in lieu of confiscation of the goods besides a penal liability on the appellant is on grounds of non-production of a valid import licence in respect of the goods and the same is not legally tenable in respect of baggage goods. finally, it was urged that in any event, levy of duty at the rate of 320% which the appellant hs suffered is patently wrong, since under the relevant law as it then stood, the duty would be far less.4. shri c.v. krishnan, the learned d.r., urged that the goods are not baggage goods and the goods have been imported by the appellant through shri swaminathan. since there is no valid import licence, the import is in contravention of law rendering the goods liable for confiscation with consequential penal liability under the act. the learned d.r. also urged that the plea of gift now urged has not been set out before any authority and ground no. 3 and ground no. 6 of the appeal before the appellate collector of customs [wrongly described collector of customs (appeals)] would disprove the present plea of gift.5. i have carefully considered the submissions of the parties herein.admittedly the goods in question are intended for the appellant and were not brought by shri swaminathan as his baggage either for his use or for a bona fide gift. section 79 of the customs act contemplates articles in the baggage of a passenger meant for the use of the passenger or the passenger's family or as a bona fide gift or souvenir.as rightly contended by the learned d.r., the pleas taken by the appellant before the lower appellate authority in para 3 & 6 of the appeal grounds would clearly bear out that the goods were sent by the agent of the indian express group of newspapers shri veerappan from singapore "at the request of the appellant for the appellant's personal use" in her house. the plea of gift has not been admittedly taken even before the revisional authority. apart from the absence of pleading, the admitted facts would clearly bear out that the articles were sent by one shri veerappan from singapore to the appellant through shri swaminathan at the specific request of the appellant herself and for the personal use of the appellant in her house. shri swaminathan has merely played the role of a carrier in bringing the said goods for the appellant and this can by no stretch of imagination be termed or characterised as a bona fide baggage of a passenger within the meaning of section 79 of the act. i, therefore, hold that the goods in question have been rightly held to be not baggage of a passenger but goods imported by the appellant through one shri swaminathan. it is not disputed before me that once the goods are construed to be imported goods, there should be a valid import licence for the clearance of the same and admittedly there was no such licence. if goods requiring a valid licence for import under law are imported without a valid licence, the goods become liable for confiscation in terms of section 111(d) of the act with a consequential penalty leviable under section 112(a) of the act. i, therefore, uphold the finding of the appellate collector of customs, madras, under the impugned order in respect of confiscability of the goods in question. in the facts and circumstances of the case, the fine in lieu of confiscation and penalty cannot be said to be either harsh or excessive and i, therefore, confirm the quantum of fine as well as penalty imposed on the appellant under the impugned order appealed against. with reference to the plea of the appellant that a higher duty has been levied, shri krishnan, the learned d.r. fairly conceded that the goods would be liable to duty as imported goods under the customs tariff act, 1975, under the appropriate heading and if a higher duty as applicable to baggage goods has been levied, the appellant would be entitled to refund of the excess duty paid. since i do not have any evidence before me with reference to the actual payment of duty, i am not able to express any opinion in regard to the same. however, 1 make it clear that it is open to the appellant to bring this aspect of the matter relating to excess payment of duty before the appropriate authority and get a refund of the same as per law on production of proper proof.

Judgment:
1. This Revision Application filed before the Govt. of India against the impugned order of the Appellate Collector of Customs, Madras, dated 18-12-1981 stands transferred to the Tribunal in terms of Section 131B of the Customs Act, 1962, hereinafter referred to the 'Act' for short, for being disposed of as if it were an appeal.

2. On 13-8-1980, one Shri M.R. Swaminathan arrived at Madras Harbour from Singapore bringing with him among other things a Sony Colour T.V.and one Akai Video Cassette Recorder of foreign origin with which alone we are concerned in the present appeal. The authorities coming to know that the said goods brought by Shri Swaminathan were meant only for the appellant, instituted proceedings against the appellant on the ground that the goods have been imported in contravention of law without a valid import licence and the proceedings thus instituted eventually culminated in the present impugned order now appealed against.

3. Shri Subramaniam, the learned Consultant for the appellant submitted that in terms of Section 79 of the Act, any article in baggage of a passenger declared as a bona fide gift is permissible for clearance as an item of baggage. In the present case, it was urged that the goods in question were gifted to the appellant by one Shri Veerappan, a news agent of Indian Express newspaper at Singapore and merely because the gifted articles were carried through one Shri Swaminathan, the articles would not lose the character of a "gift". It was further urged that if the goods are construed as baggage items under law, there is no need for any adjudication and the impugned original order of adjudication and the Appellate Collector's order imposing a fine in lieu of confiscation of the goods besides a penal liability on the appellant is on grounds of non-production of a valid import licence in respect of the goods and the same is not legally tenable in respect of baggage goods. Finally, it was urged that in any event, levy of duty at the rate of 320% which the appellant hs suffered is patently wrong, since under the relevant law as it then stood, the duty would be far less.

4. Shri C.V. Krishnan, the learned D.R., urged that the goods are not baggage goods and the goods have been imported by the appellant through Shri Swaminathan. since there is no valid import licence, the import is in contravention of law rendering the goods liable for confiscation with consequential penal liability under the Act. The learned D.R. also urged that the plea of gift now urged has not been set out before any authority and ground No. 3 and ground No. 6 of the appeal before the Appellate Collector of Customs [wrongly described Collector of Customs (Appeals)] would disprove the present plea of gift.

5. I have carefully considered the submissions of the parties herein.

Admittedly the goods in question are intended for the appellant and were not brought by Shri Swaminathan as his baggage either for his use or for a bona fide gift. Section 79 of the Customs Act contemplates articles in the baggage of a passenger meant for the use of the passenger or the passenger's family or as a bona fide gift or souvenir.

As rightly contended by the learned D.R., the pleas taken by the appellant before the lower appellate authority in para 3 & 6 of the appeal grounds would clearly bear out that the goods were sent by the agent of the Indian Express Group of Newspapers Shri Veerappan from Singapore "at the request of the appellant for the appellant's personal use" in her house. The plea of gift has not been admittedly taken even before the Revisional Authority. Apart from the absence of pleading, the admitted facts would clearly bear out that the articles were sent by one Shri Veerappan from Singapore to the appellant through Shri Swaminathan at the specific request of the appellant herself and for the personal use of the appellant in her house. Shri Swaminathan has merely played the role of a carrier in bringing the said goods for the appellant and this can by no stretch of imagination be termed or characterised as a bona fide baggage of a passenger within the meaning of Section 79 of the Act. I, therefore, hold that the goods in question have been rightly held to be not baggage of a passenger but goods imported by the appellant through one Shri Swaminathan. It is not disputed before me that once the goods are construed to be imported goods, there should be a valid import licence for the clearance of the same and admittedly there was no such licence. If goods requiring a valid licence for import under law are imported without a valid licence, the goods become liable for confiscation in terms of Section 111(d) of the Act with a consequential penalty leviable under Section 112(a) of the Act. I, therefore, uphold the finding of the Appellate Collector of Customs, Madras, under the impugned order in respect of confiscability of the goods in question. In the facts and circumstances of the case, the fine in lieu of confiscation and penalty cannot be said to be either harsh or excessive and I, therefore, confirm the quantum of fine as well as penalty imposed on the appellant under the impugned order appealed against. With reference to the plea of the appellant that a higher duty has been levied, Shri Krishnan, the learned D.R. fairly conceded that the goods would be liable to duty as imported goods under the Customs Tariff Act, 1975, under the appropriate heading and if a higher duty as applicable to baggage goods has been levied, the appellant would be entitled to refund of the excess duty paid. Since I do not have any evidence before me with reference to the actual payment of duty, I am not able to express any opinion in regard to the same. However, 1 make it clear that it is open to the appellant to bring this aspect of the matter relating to excess payment of duty before the appropriate authority and get a refund of the same as per law on production of proper proof.