TMI Blog1988 (3) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... the suppliers (not the original), was not the xerox copy of the original copy retired from the Bank. Further the packing list described the goods as C.N. Plastic Sheet giving rise to the belief that the goods were Cellulose Nitrate Sheets. Further, the Customs noticed that in the Original Bill of Entry the goods were described as Plastic Sheets, C.N. The letter C.N. were scored off later. On the reverse of the Bill of Entry there is a request (By Shri Rajesh Ramavatar Totia, according to the show cause notice) reading Sir, Goods are Cellulose Nitrate Sheets covered under appendix-6 list 8 part I Item No. 13 of AM-84-85. Hence clearance may be allowed under OGL". The words Cellulose Nitrate appearing in the said endorsement were subsequently scored off and substituted by the word Plastic. (It is argued before us that the entire request was scored off). 3. In these circumstances it appeared to Customs that the importers wanted to get the consignment passed as Cellulose Nitrate Sheets under OGL and at concessional rate of duty by virtue of Exemption Notification No. 227/76-Cus. Plastic Sheets were liable to full duty of Customs which was roughly 3 times the concessional rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for assessment at lower rates and submitted that even in the Bill of Entry the letters C.N. were not visible. It was stated for the appellants that the imported goods were plastic sheets and that the appellants stated before the Collector that they were ready to produce the necessary licences to clear the goods. 6. Denying any mis-declaration of value, the learned Counsel submitted that the Commission Settlement relied on by Customs was only provisional. It was explained that the Commission would be paid only after the entire consignment was imported whereas the appellants imported only 30 M.T. out of 85 M.Ts. It was also pointed out that the goods in question were imported in March, 1985 whereas the Commission settlement related, as stated therein, to fourth quarter of 1984. 7. It was also submitted by the learned Advocate that the department s reliance on a Bill of Entry by Thermax was wrong as the goods therein were component parts of machines made of plastic and classified under Heading 84.66(1) and were totally different from the goods concerned in this matter which were classifiable under Heading 39.04/06. They submitted that 7 or 8 imports of similar goods at similar val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way. He emphasised that the Commission statement should not be relied on and pointed out that the Collector in his order (paragraph 28) did not give any particulars of the size of importation or any other details including Commission paid. He further pointed out that the value was worked out by Customs on the basis of weight and this was totally unacceptable and emphasised that only one Bill of Entry was relied upon by Customs. 11. We have considered the arguments of both sides. We have examined the Bill of Entry. The description given in column 6 thereof reads Plastic Sheets . The letters thereafter cannot be read, having been obliterated. Scoring out also occurs on the request made on the reverse of the Bill of Entry for allowing the goods under OGL Item No. 13. There is a line drawn diagonally across this request but otherwise the request is legible. The learned Advocate for the appellants, Shri Gujral, stated that this request was cancelled on the very same day . We don t understand how the appellants made this request for the goods being allowed under OGL without declaring the imported sheets, as C.N. Plastic Sheets . The presence of the request itself lends support to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M.Ts. and not to the present consignment of 30 M.Ts. alone and that it related to 4th quarter of 1984 whereas the goods were imported in February, 1985. As far as the reference to 4th quarter of 1984 is concerned, the objection does not seem to be valid. This document, copy of which was perused by us, shows that it was not a covering letter to payment of Commission, but only an indication thereto. From a careful perusal of it we also find that this certainly is not a provisional sheet. The learned Advocate pointed out the word provisions occurring in the document but this word seems to be merely the German equivalent of the English word Commission . This is apparent from the document itself. 14. This document has some very important contents. The number of the invoice is given as 45.055. The Customer is shown as Poonam Plastic, the present appellant. The serial number given in the invoice dated 17.2.1985 is 045055, same as the number in this document. Therefore, this document can be relied upon as authentic. We note that this document was recovered by the Customs on search during the course of investigations. 15. We further note that even from the invoice it can be seen tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. Coming back to the commissions statement, we see that it relates to the last quarter of 1984, does not mention any quantity, but mentions a value of DM 263500. We are unable to believe, as the appellants would like us to do, that provisional commission was worked out for goods which were not imported, for which no letter of credit was opened, and for goods for which no order had been placed. We further see that this commission statement was dated 11.6.1985, well after the goods were exported from Germany and received by the appellants. In June, 1985 the supplier could not have taken into consideration 85 tonnes of expected purchase instead of 30 tonnes accutally exported. For all these reasons, we hold that the commission sheet correctly represents the value of the imported goods. The appellants had grossly under-declared the value. They had also attempted to pass the goods without a licence and at concessional rate of duty by mis-declaring them as Cellulose Nitrate Sheets. But they were found out in time and then they have tend to retrace their steps. 18. The Collector s reliance on the importation done by Thermax was also examined by us. What seems to have impressed the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to which Section 178-A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affA.I.R.s absolute certainty is a myth, and as Prof. Brett felicitously puts it - all exactness is a fake . El Dorado of absolute Proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus legal proof is not necessarily perfect proof often it is nothing more than a prudent man s estimate as to the probabilities of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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