Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

Comments

Print   |    |  Comment

PJ/CASE LAW/2015-16/3009

Provisional release of smuggled goods.

Case:SHEIK MOHAMMED RAFIQUE AHMED versus JT. /ADDL. C.C., AIRPORT, CHENNAI

Citation:2016 (331) E.L.T. 337 (Mad.)

Brief Fact: In this writ petition, the Petitioner prayed for a direction to the respondent to release the seized imported goods under the mahazar dated 7-9-2014.
The case of the petitioner is that he is a native of Nasik, Maharashtra. The petitioner returned from Sharjah to Chennai via Trivandrum by Air India Flight on 7-9-2014. The petitioner was carrying with him, gold chains of 18 carat, two bangles of 24 carat purity, 12 kg of saffron, RMD kutka, Gudang Garam Cigarette cartons, perfumes and two samsung mobiles. At Trivandrum, the Officer of the Directorate of Revenue Intelligence, Trivandrum conducted a search in the baggages of the Petitioner. Thereafter, at Chennai Airport, the said goods were seized under mahazar dated 7-9-2014 on the ground that the Petitioner smuggled the said goods by concealing the same in his baggages. Thereafter, a statement was recorded from the petitioner against his will on 8-9-2014 to the effect that the petitioner attempted to take out the same through Green Channel, without payment of duty. The petitioner sent representations dated 10-9-2014 and 15-9-2014. A further statement was recorded from the petitioner on 2-12-2014. Thereafter, the petitioner sent another representation dated 4-12-2014. On completion of the investigation, a show cause notice dated 5-3-2015 in terms of Section 124 of the Customs Act, 1962 was issued, proposing as to why the seized goods should not be confiscated and penalty should not be imposed. To the said show cause notice, the petitioner sent a reply dated 23-3-2015, refuting the allegations and again, the petitioner sent a representation dated 26-6-2014 seeking release of the seized goods. Since there was no action on the part of the respondent, this writ petition has been filed for the relief as stated above.
 
The respondents filed a counter affidavit, wherein it is stated that all the relevant travel documents viz. boarding pass, customs declaration form, e-ticket, etc., were scrutinized by DRI. On scrutiny, it was found that against the column ‘total value of the dutiable goods carried’ by him, it was mentioned as ‘nil’. On enquiry by DRI as to whether he is in possession of any dutiable goods or foreign origin gold, the petitioner replied in the negative. The DRI examined the hand baggage and recovered 480 nos. of saffron packets each weighing 25 gms. i.e. a total of 12 kg of saffron. A show cause notice dated 5-3-2015 was issued and personal hearing was fixed on 5-9-2015. The petitioner had smuggled the goods into India without declaring the same to the customs in order to evade payment of customs duty and hence, the goods were seized, since the goods were liable for confiscation under Section 111(d) and (l) of the Act.
 
 
Appellant contention:  The learned counsel for the petitioner contended that the seized goods are neither prohibited nor restricted and they could be brought as part of baggage and that as per Section 110A of the Customs Act, 1962 read with Customs (Provisional Duty Assessment) Regulations, 2011, which are categorical and clear in terms, provisional release ought to have been made, pending adjudication on furnishing bond and security and that in any event, the goods are to be released on payment of appropriate duty and relied upon the decision of the Hon’ble Supreme Court reported in 2011 (269) E.L.T. A146 (S.C.) (Commissioner v. Navashakti Industries P. Limited).
 
Respondent contention:On the other hand, the learned senior standing counsel for the respondent reiterated the averments made in the counter affidavit and supported the impugned order, by contending that the goods in question were seized under the relevant provisions of the Act and that the adjudication is under process and the petitioner can agitate his grievance during the personal hearing and therefore, prayed for dismissal of this writ petition.
 
Reasoning of Judgment:The hon’ble high court have considered the aforesaid submissions and perused the materials available on record.
 
It is manifested from the records that the DRI, Chennai Zonal Unit, on specific intelligence, had intercepted the petitioner at Anna International Airport, Chennai, and on enquiry, it was revealed that the petitioner was coming from Sharjah via Trivandrum. On scrutiny of the Customs Declaration form by DRI, it was found that against the column, ‘total value of dutiable goods carried’ by him, it was mentioned as ‘Nil’. On enquiry by DRI as to whether he is in possession of any dutiable goods or foreign origin gold, he replied in the negative.
 
Thereafter, the DRI had examined the hand baggage and recovered 480 nos. of saffron packets each weighing 25 gms, totalling 12 kgs of saffron. Then the DRI officers had examined the two checked-in-baggages and found to contain RMD Gutka Sachets pakced in 8 black coloured checked polythene bags, perfumes and four cartons of Gudang Garam Cigarette of Indonesian origin. Then the DRI officers had seized the gold chains, gold bangles, RMD Gutka, Samsung Mobile phones and Iranian saffron, which were totally valued at Rs. 31,41,125/-, under a mahazar on 17-9-2014. After the completion of the investigation, a show cause notice, dated 5-3-2015 was despatched. Now the adjudication is under process.
 
It is vehemently contended by the learned Senior Standing Counsel appearing for the respondent that since the passenger had attempted to smuggle the goods into India by concealing the same in his person as well as in his hand baggage and checked-in-baggage, without declaring the same to the Customs, in order to evade the payment of Customs duty, the aforestated goods are liable for confiscation under the provisions of Section 111(d) and 111(l) of the Customs Act, 1962 and hence, it cannot be released provisionally under Section 110 of the Customs Act, 1962 as contended by the learned counsel for the petitioner.
 
Further, the learned Senior Standing Counsel has contended that when the cargo/goods are imported and the Bill of Entry is filed based on the importer’s IEC Code, the question of provisional release would arise, but in the instant case on hand, the provisions of Baggage Rules alone would be applicable.
 
As rightly contended by the learned Senior Standing Counsel, the petitioner had attempted to smuggle the aforesaid goods into India only with an intention to evade payment of Customs duty and in the absence of any contention refuting the same from the learned counsel for the petitioner, this Court is of the view that the goods confiscated under Section 111(d) and 111(l) of the Customs Act, 1962, cannot be released provisionally as sought for by the petitioner.
 
Further, when the goods were confiscated under Section 111(d) and 111(l) of the Customs Act, 1962, the question of provisional release under Section 110 of the Customs Act, 1962 does not arise. Therefore, the Court is of view that only after the completion of adjudication process, the adjudicating authority would decide whether the goods confiscated under Section 111(d) and 111(l) of the Customs Act, 1962, could be released or not.
 
Accordingly, the respondent, who is the adjudicating authority, is directed to complete the adjudication, after affording an opportunity of personal hearing to the petitioner, within a period of eight weeks from the date of receipt of a copy of this order. The petitioner shall cooperate with the adjudicating authority to complete the adjudication as afore stated.
 
For the foregoing reasons, the writ petition is liable to be dismissed and accordingly, the same is dismissed.
                                                                                             
Decision:  Petition dismissed.

Comment:The substance of the case is that the petitioner had attempted to smuggle the goods in to India in order to evade the payment of custom duty. The afore stated goods are liable for confiscation under the provisions of Section 111(d) and 111(l) of the Customs Act, 1962 and hence, it cannot be released provisionally. Hence in the instant case provisional release is not feasible.

Prepared By:Anash kachaliya
 
 

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com