TMI Blog1987 (5) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... is firm M/s. Shah Sons Photo Store and M/s. Jaikishen Brothers, the godown premises, the shop premises and the residence of Kishan Shamdas Bhatia were searched on 13-2-1981. From the residential premises goods worth Rs. 17,130/- CIF market value Rs. 51,390/-;from the godown premises goods worth Rs. 24,396/- CIF, market value Rs. 73,188/- and from the shop premises goods worth Rs. 2,025/-CIF, market value Rs. 6,075/-, were seized in the reasonable belief that they were smuggled into India and were liable to confiscation. The statement of Kishan Bhatia was recorded on the same day. In his statement he had stated that M/s. Sham Sons was a partnership firm. He and his two brothers were the partners. As regards the goods seized from the premises, he stated that he would produce the bills and other documents to prove the legal acquisition and importation. As regards the camera seized from the premises, he stated that they were given to him for repairs by different customers and the customers did not turn up to take delivery of the same and as such they were lying in the premises. He admitted that he does not have any repair facility. He gives them to different repairers for repairi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Collector by the appellant, Shri Kishan Bhatia. It was further contended by Shri Raichandani that excepting the cameras the others were non-notified goods. They were not covered either by Chapter IV(a) or by Section 123. Therefore the burden is on the Department to establish that they were the smuggled goods and that burden had not been discharged. Shri Raichandani further contended that the appellant had produced bills and other documents to support legal acquisition. The Additional Collector had not properly considered the documents produced by the appellant Bhatia. It was also contended by Shri Raichandani that the appellant was detained under COFEPOSA on the ground that he had not accounted for the seized goods; but the said detention order had been set aside by the High Court. Having regard to the order of the High Court, the order passed by the Additional Collector without considering the order of the High Court is also vitiated. The further submission of Shri Raichandani was that the most of the goods were old and torn and therefore the appellant disputed the value mentioned in the panchnama the customs officers revalued the goods. Even the revaluation has not been proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entary evidence and he, therefore, prayed that the order of absolute confiscation of the goods as well as personal penalties on the two appellants be set aside. It was also contended by Shri Raichandani that the appellant Kishan Bhatia was the managing partner of the firm. He alone was looking after the affairs of the firm and, therefore, the penalty imposed on the firm without issuing a show cause notice to other partners is bad in law. The penalty on Shri Bhatia is also excessive. 7. Shri Pattekar appearing for the Collector, however, urged that it is not merely cameras that were notified, even flash guns and colour films were also notified goods. The restriction regarding notified goods provided under Section 11(0, (C), (E) and (F) are attracted. The appellants have not complied with any of those provisions and, therefore, the order of confiscation passed by the Additional Collector is legal and proper. Shri Pattekar submitted that Additional Collector had given good reasons for ordering confiscation and, therefore, his order may not be interfered with. It was also submitted by Shri Pattekar that the photostat copy of the reply produced by the appellant is not the true photost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repairs. He had issued some bills; but then they were not readily traceable. He is also not in a position to produce the persons who had given the cameras for repairs. From the statement of the appellant Bhatia, it is clear that he himself is not the repairer. His shop is not a repair shop because he had not employed any repairers in the shop. It looks that he was carrying on the business of getting goods repaired. As a matter of fact, the person to whom he entrusts for repairs are also not his employees. They are not even under his control. The exemption from the operation of the above sections can be availed of by the actual repairers and not by a person like appellant who does not either repair himself or employed any persons to repair the goods. In these circumstances the contention of Shri Raichandani that the appellant is not required to comply with the provisions of Section 11C, D, E and F of the Customs Act has no merit. Admittedly, the appellant did not comply with those provisions in respect of admitted notified goods. In the circumstances if the Additional Collector had ordered confiscation of the notified goods the same cannot be successfully challenged. 10. As regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, the department did not lead any evidence either direct or circumstantial to establish the smuggled nature of the non-notified goods. In the circumstances the order of absolute confiscation of the non-notified goods is legally not sustainable. 12. The learned advocate for the appellants had submitted that in his order the Additional Collector had wrongly mentioned that no reply to the show cause notice had been submitted by M/s. Jaikishen Brothers and M/s. Sham Sons. Shri Raichandani submitted that the reply sent by Kishan S. Bhatia was on behalf of all the 3. In that connection Shri Raichandani referred to a copy of the reply, dated 5-8-1981 sent by Krishan S. Bhatia. Shri Pattekar had disputed the correctness of the copy. We verified the original reply. We found that the statement made by the learned advocate is an irresponsible statement because the original reply discloses that it was made only on behalf of Kishan S. Bhatia and not on behalf of Sham Sons, Jaikishen Brothers and K.S. Bhatia as has been argued. It is unfortunate that a fabricated copy of the reply should have been filed and arguments should have been based on such a fabricated document. It may be poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n consideration of all the aspects, we confirm the confiscation of all the notified goods; but, however, we set aside the confiscation of non-notified goods, since the department was not able to discharge the initial burden that the non-notified goods were smuggled goods. 16. Shri Raichandani had contended that in his final order the Additional Collector has taken into consideration the value as mentioned in the panchnama and not the revised value. It is true that the Additional Collector while ordering release as well as ordering confiscation had taken the value as set out in the panchnama. But then his order discloses that at the request of the appellant there was revaluation. But then, adopting of the old value or the revised value in no way affects the appellants. Specific items were allowed to be released and specific items were ordered to be confiscated. The valuation would have some bearing if the Additional Collector had allowed redemption on payment of fine in lieu of confiscation. 17. The only other aspect that remained for consideration is about the contention as to the penalty imposed on the appellants. The Additional Collector had imposed a penalty of Rs. 10,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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