TMI Blog2012 (8) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside the confiscation order passed by the Commissioner, by recording a finding in paragraph 6 to the effect that the assessee had produced purchase vouchers in relation to the diamonds in question, but the Commissioner has failed to verify the genuineness of those vouchers. However, perusal of paragraph Nos.36 37 of the order in original clearly shows that the Commissioner had in fact considered the materials placed before him and also recorded a finding on those materials. Since the order of the Tribunal is contrary to the facts on record, the order of the CESTAT is quashed and set aside and the matter is remanded back to the Tribunal for denovo consideration. 3. The facts of the case are as under: 3.1. Neeta Prakash Modi - the appellant has filed this appeal against the order confirming absolute confiscation of diamonds weighing 154.04 carets under Section 111(o) of the Customs Act, 1962. The appellant s deceased husband Shri Prakash J. Modi was engaged in the business of the purchase and sale of cut and polished diamonds in the name and style of M/s. Koshin Gems as a sole proprietor. The said proprietary firm was registered with the Sales Tax department. It was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ually incorrect as it has been recorded in the paragraphs that the document of purchases, i.e., statement in the purchase register/ vouchers were produced for the first time only at the time of hearing on 19/02/2008 which is contrary to the findings of the Tribunal in the earlier round of litigation vide order No. E/501/CSTB/2007 dated 06/07/2007. It is the burden of the Revenue to prove illicit purchase and Revenue has failed to establish that the impugned diamonds are smuggled one. Therefore, the impugned order has to be set aside. He further submitted that the impugned diamonds are non-notified goods and the burden of proof of illicit purchase is on the Revenue as held by the hon ble High Court of Bombay in the case of Commissioner of Customs, Mumbai vs. Foto Centre Trading Co. 2008 (225) ELT 193 (Bom.). 5. On the other hand, the learned DR submitted that the appellant himself has admitted, during the course of seizure, that he was involved in the smuggling of the seized diamonds. Moreover, the statements of Shri Prakash Modi was corroborated by the other co-noticees, whose statements were also recorded at the time of seizure. Further, the purchase vouchers were not provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f diamonds seized from Mr. Prakash Modi on 18.1.1991 were bona fide or not. Fresh orders are to be passed after extending a reasonable opportunity of hearing to Mrs. Neeta P. Modi. Since this is a sixteen-year old case, we direct that the proceedings be completed by the Commissioner within a period of three months from the date of receipt of this order. 8. On perusal of the above said order, we find that it was recorded by this Tribunal that Shri Prakash Modi has taken the plea, in reply to the show cause notice that all diamonds seized were duly accounted for. He also produced the payment receipts showing payments for diamonds and these documents had not been analysed or commented upon by the Commissioner in the impugned order. From the text of above order of this Tribunal dated 06/09/2007, it is clear that Shri Prakash Modi had produced purchase vouchers and purchase registers while replying to the show cause notice and the said contends have not been challenged by the Revenue. Therefore, the same has attained finality. In the remand proceedings in paragraph 36 and 37 of the impugned order the Commissioner has observed as under: 36. It is after lapse of a goods sixteen ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seized diamonds were legally acquired by him. The above documents were generated by the Noticee himself. The Noticee has not submitted any documents which were issued by the seller and also at any given point of time, the Noticee did not come forward with the documents which could be verified. He submitted documents which were prepared by himself after the seizure as could be seen from the above discussion. The above discussion lead to the conclusion that the Noticee purposely avoided submission of verifiable documents. 9. On analysing the contents of paragraph 36 and 37 of the impugned order it is a clear cut finding of the Commissioner that the documents have been produced for the first time on 19/02/2008 which is factually incorrect in view of the remand order dated 06/09/2007 of this Tribunal. Therefore, the contents of paragraphs 36 and 37 have no evidential value and cannot be relied upon. Further, we find that the purchase documents have been produced by Shri Prakash Modi in reply to the show cause notice, no effort was made by the adjudicating authority to verify the correctness of the said documents and no enquiry was made from Shri Prakash Modi with regard to document ..... X X X X Extracts X X X X X X X X Extracts X X X X
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