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2022 (11) TMI 1160 - AT - CustomsConfiscation of goods - Levy of penalty - Mis-declared/un-declared imported goods - goods which were declared as Adhesive Tapes but on examination, the goods appeared to be PTFE Tapes - wilful suppression of actual import value with intent to evade duty and as such - recovery of duty under Section 28 of the Act by invoking the extended period of limitation. HELD THAT:- Admittedly, it is a case of town seizure. The goods found or available in the open market are presumed to be duty paid unless otherwise proved by the Department. Admittedly, in the facts of the instant case, Revenue have not brought any material on record that the goods seized from the shop/godown premises of the appellant, were not duty paid. Admittedly, the appellant have neither placed purchase orders with the foreign suppliers nor have made any payment to such foreign suppliers. Admittedly, the appellant have procured the goods from the importer(s) located in India after such importers brought the goods to the open market post out of charge granted by the Customs Department. All the suppliers, whose bills the appellants have produced in support of the goods lying in his godown, have confirmed supply of goods against those invoices, although there are minor distortion in the statements. In view of the documentary evidence, oral evidence have got less weight and documentary evidence being more reliable cannot be ignored. As the appellant admittedly is not the importer, as defined under the provisions of the Customs Act, the impugned order confiscating the goods and demanding duty is bad in law and on facts. The impugned order is also bad for violation of the provisions of Section 138 B of the Act, which requires that the Adjudicating Authority is required to examine and offer for cross examination of the witnesses of the Revenue, which have not been done by the court below. There is no evidence that this appellant has financed the imports made by other importers/traders - the show cause notice is vague, as valuation of the goods has been done by the Revenue without any relied upon documents (copy of any retrieved documents from mobile /CPU of the appellant). Evidently, no panchnama was drawn by Revenue for retrieval of data or documents from the CPU/mobile of the appellant - reliance placed by Revenue on the statement of Mr. Vivek Kumar Bansal, Proprietor of M/s. Dee Vee Posters is bad on facts as the statements are self-contradictory. The seizure is bad under the provisions of Section 110 of the Act. It is found that the show cause notice is vague as it does not specify the particular clause of Section 111, under which the goods are liable for confiscation. Further, in the facts and circumstances, the imposition of penalty under Section 112 and 114 AA is bad. Appeal allowed.
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