TMI Blog2003 (4) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... not been utilised in the manufacture of the product which was to be exported but had actually been sold without any permission from the licensing authority to three parties Poddar Tubes Pipes Ltd., Ganesh Benzo Plast Ltd., and Bharat Steel and that such sale has taken place before the export obligation had been discharged in full. The departmental officers searched the premises of the importer and other persons and recorded statements. Krishna Lal Dhingra, Vice President of the importing-company said in his statement that the goods were supplied to these three firms for them to manufacture flanges which were to be exported. He gave details of the quantities supplied to each and stated that security deposit almost equal to the market price was taken in cheques from these persons but there was no written contract between the importer and these three. The company had exported 229.692 tons of stainless steel flanges, but these were manufactured indigenously. Madan Lal Bhallaji Jain, partner of Bharat Steel, in his statement before the Customs officers, says that the firm had purchased 168 tons stainless steel plates of Rs. 161.72 lakhs. He gave details of the delivery. Jain said that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of law and made liable to confiscation under clause (o) of Section 111 of the Act. He denied the benefit of the exemption contained in Notification No. 204/92 and demanded duty in terms of the declaration or undertaking given by the importer at the time of clearance and under Section 28 of the Act. Confiscation of 52.741 tons of goods which had been seized from the premises of Globe Warehouse to its owner Poddar Tubes and Pipes Ltd. with an option to redeem on payment of fine, and imposed penalty of Rs. 1 crore on Akai Impex Ltd., Rs. 10 lakhs on K.L. Dhingra. These two appeals are by the importer and its Vice President. (There are other appeals also heard on this day.) 4.The contentions of the common Counsel for Akai Impex and Dhingra are as follows: The case of the department is based entirely upon statements recorded from various persons. These statements have not been recorded under Section 108 of the Customs Act, 1962, but under Section 14 of the Central Excises and Salt Act, 1944. These statements are inadmissible and cannot be relied upon in proceedings under the Customs Act. The show cause notice does not indicate under what provisions of law, the demand is made. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 108 of the Customs Act, 1962 has relevancy to the proceedings under that Act because it is recorded in the course of an enquiry which the officer recording the statement such an enquiry is deemed to be a judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code, 1860. The solemnity and sanctity attached to the statements made during the judicial proceedings therefore attaches to the statements made under Section 108 of the Act. Sub-section (3) of Section 108 also makes it mandatory upon the persons summons under that Act to state the truth upon any subject respecting which he is examined or makes statement. These provisions will, we agree, not be available in respect of the statements which are relied upon. They were made under Section 14 of the Central Excises and Salt Act, 1944 with regard to a proceeding which was not an enquiry which was being made for any of the purposes of that Act. However, this does not render the statements having no probative value whatsoever. Such statements would have the same probative value as statements made by these persons before anyone other than an officer of Customs. In other words, they contain what each o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f indigenous steel; that is what Dhingra has said in his statement. 8.The show cause notice cites the provisions of Notification 204/92 that the importer, at the time of clearance of the imported material "makes a declaration before the Assistant Collector of Customs binding himself to pay on demand an amount equal to the duty leviable but for the exemption, on the imported materials in respect of which the condition specified in this notification has not been complied with" and demand the duty in terms of this undertaking. It does not refer to or rely upon the provisions of Section 28 of the Customs Act. The provisions of that section therefore would not be applicable to this notice. We are not required to consider the contention that it is barred by limitation. 9.The appeal was filed before the Tribunal on 26-8-1996. An application was filed on 25-2-2002 seeking to incorporate additional grounds in the grounds of appeal. These grounds seek to contend that the demand is barred by limitation under Section 28 of the Act, and that no declaration or undertaking was executed before the customs authority at the time of clearance of respective consignments and only bond which was exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tribunal. We are not required to consider the contents of these circulars and to demand duty in case where an exemption notification of the kind that we are concerned with breached or the orders of the Settlement Commission. 12.The matter is settled by the judgment of the Supreme Court in Shashank Sea Foods Pvt. Ltd. v. CCE - 1996 (88) E.L.T. 626 holding that the Customs authorities have power to order confiscation of the goods under Section 111(o) of the Act. 13.We do not see the relevance of the applicability of the contention raised by the Counsel relating to the provisions of Sale of Goods Act, 1930. He cited the provisions of Sections 4, 18 and 19 of this Act. The fact that there was no written document of sale between the parties cannot lead to the conclusion that there has been no sale of the goods. Section 4 of the said Act deals with the contract of sale or an agreement of sale. Section 18 provides that where there is a contract for sale, deals with contract of any ascertained goods and Section 19 explains that property of specific or ascertained goods in transfer to the buyer to such time as the parties to the contract intended to be transferred, make it clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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